"TINT  &  BARTER 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


INHERITANCE  TAXATION 

A  TREATISE  ON 

LEGACY,    SUCCESSION,    AND 
INHERITANCE    TAXES 

UNDER 

THE  LAWS'  OF 

ARKANSAS,    CALIFORNIA,    COLORADO,     CONNECTICUT,    DELAWARE,    IDAHO,    ILLINOIS, 
IOWA,  KANSAS,  KENTUCKY,  LOUISIANA,   MAINE,  MARYLAND,   MASSACHUSETTS, 
MICHIGAN,    MINNESOTA,    MISSOURI,    MONTANA,    NEBRASKA,    NEW     HAMP- 
SHIRE, NEW  JERSEY,  NEW  YORK,  NORTH  CAROLINA,  NORTH   DAKOTA, 
OHIO,  OKLAHOMA,  OREGON,  PENNSYLVANIA,  SOUTH  DAKOTA,  TEN- 
NESSEE,   TEXAS,   UTAH,   VERMONT,   VIRGINIA,    WASHINGTON, 
WEST    VIRGINIA,    WISCONSIN,    AND    WYOMING 

AND 

FORMER  ACTS  OF  CONGRESS 
WITH 

FORMS 

AND 

FULL   TEXT    OF   STATUTES 

BY 

PETER  V.  ROSS, 

of  the  San  Francisco  Bar 

Author   of   a   Treatise   on   Probate    Law   and    Practice;    Formerly 
Associate   Editor   of   American   State   Reports. 


SAN  FRANCISCO 

BANCROFT-WHITNEY  COMPANY 
1912 


COPYRIGHT,  1912 

BY 
PETER  V.  ROSS 


T 


SAN  FRANCISCO 

THE  FILMER  BROTHERS  ELECTROTYPE  COMPANY 
TYPOGRAPHERS  AND  STEREOTYPERS 


PKEFACE. 


Probably  no  system  of  taxation  now  in  vogue  rests  upon  a 
basis  more  just  and  equitable  than  does  inheritance  taxation; 
for,  in  reducing  the  amount  which  beneficiaries  of  a  decedent 
receive,  it  takes  of  that  which  they,  in  a  great  majority  of 
cases,  have  had  no  part  in  producing,  and  which  they  succeed 
to  at  all  only  by  grace  of  the  authority  or  government  for 
whose  support  the  tax  is  exacted.  The  inherent  justice  of 
this  form  of  taxation  becomes  more  apparent  when  it  is  viewed 
in  the  light  of  such  special  features  as  the  exemption  of  gifts 
or  estates  of  limited  value;  the  imposition  of  higher  rates,  or 
the  allowance  of  a  smaller  exemption,  in  the  case  of  strangers 
and  collateral  relatives  than  where  lineal  descendants  and  the 
surviving  husband  or  wife  are  affected;  and  the  graduation 
of  the  tax  rate  in  proportion  to  the  value  of  the  estate  or  gift 
— thereby  adjusting  the  burden  according  to  the  bounty  re- 
ceived and  the  ability  to  respond,  and  also  according  to  the 
closeness  of  relationship  between  the  parties,  and  hence,  pre- 
sumably, the  degree  of  the  right  to  succeed  to  the  property. 

But  however  commendable  the  taxation  of  inheritances  may 
seem  to  the  unprejudiced  mind,  adverse  criticism,  and  even 
untempered  condemnation,  are  not  uncommon.  These  spring 
from  the  reluctance,  manifested  all  but  universally  in  man- 
kind, to  contribute  to  the  financial  support  of  government — 
a  reluctance  not  a  whit  less  inflexible  in  the  presence  of 
affluence  and  abundant  ability  to  yield  contribution. 

It  is  true  that  in  some  instances  injustice  has  been  done  in 
the  collection  of  inheritance  taxes.  Thus  in  Illinois  the 
widow's  dower,  and  in  California  her  share  of  the  community 
property,  have  been  subjected  to  taxation  upon  the  death  of 
the  husband,  the  courts  mistakenly  supposing  that  the  widow 
comes  into  these  estates  by  virtue  of  the  law  of  succession. 
But  in  other  states  the  courts  have  discerned  the  true  nature 
of  the  widow's  dower  and  community  interest,  and,  realizing 
that  she  is  not  dependent  upon  the  law  of  succession  for  them, 

(iii) 


iV  PREFACE. 

have  not  burdened  them  with  the  inheritance  tax.  The  injus- 
tice she  has  suffered  in  these  instances,  then,  is  due,  not  to  the 
system  of  inheritance  taxation,  but  to  a  misconception  of  the 
law  of  dower  and  community  property. 

An  injustice  is  also  done,  perhaps,  through  double  taxation, 
where  the  owner  of  personal  property  situated  in  one  state 
dies  domiciled  in  another,  in  which  case  the  first  state  taxes 
the  property  because  the  actual  situs  is  within  its  boundaries, 
while  the  latter  state  imposes  a  similar  tax  because  the  legal 
situs  is  within  its  jurisdiction.  This  practice  of  double  taxa- 
tion has  been  indulged  to  a  considerable  extent,  and  is  still 
far  from  obsolete,  although  it  has  been  departed  from  in  a 
number  of  states. 

But  these  objections,  and  others  that  possibly  may  be  ad- 
vanced, are  accidental  only,  and  do  not  go  to  the  merits  of 
inheritance  taxation.  It  has  so  commended  itself  not  only 
to  popular  thought,  but  to  the  minds  of  legislatures  and 
courts  as  well,  that  it  has  gradually,  and  in  recent  years  rap- 
idly, been  extended  as  a  system  of  raising  revenue,  until  now 
thirtyeight  states  of  the  Union  are  collecting  inheritance 
taxes,  and  most  of  them  upon  both  direct  and  collateral 
successions.  The  United  States  government,  however,  discon- 
tinued its  tax  in  1902. 

The  subject,  therefore,  has  assumed  no  inconsiderable  im- 
portance; and  the  amount  of  law  that  has  accumulated 
thereon,  as  evidenced  by  the  statutes  and  decisions,  is  suffi- 
cient to  make  a  volume  of  ordinary  law-book  size. 

The  volume  naturally  falls  into  three  subdivisions.  The 
first  is  a  text  or  commentary  based  upon  the  decisions  of  all 
the  courts  of  the  country,  both  state  and  national.  This  is 
written  in  the  usual  text-book  style,  and  is  intended  to  bring 
out  all  points  that  have  been  decided,  and  accurately  to  reflect 
the  case  law  as  it  now  stands  in  the  United  States.  The 
second  part  contains  forms  for  use  in  the  collection  and  en- 
forcement of  taxes.  Their  author  is  Edward  H.  Fallows, 
Esq.,  of  the  New  York  Bar,  who  has  graciously  consented  to 
their  use  and  to  whom  grateful  acknowledgment  is  here  made. 
The  third  part  contains  the  inheritance  tax  statutes  of  all  the 
states  that  have  resorted  to  this  system  of  taxation.  The  full 
text  of  the  statutes  is  given  as  they  now  stand. 


PREFACE.  V 

The  book  is  not  a  local  treatise.  It  is  intended  to  embrace 
all  the  law  on  the  subject  to  which  it  is  addressed,  both  of  the 
United  States  before  the  repeal  of  the  war  revenue  act  ol 
1898,  and  of  the  thirty-eight  states  of  the  Union  that  now  tax 
inheritances.  These  states  are:  Arkansas,  California,  Colo- 
rado, Connecticut,  Delaware,  Idaho,  Illinois,  Iowa,  Kansas, 
Kentucky,  Louisiana,  Maine,  Maryland,  Massachusetts,  Michi- 
gan, Minnesota,  Missouri,  Montana,  Nebraska,  New  Hamp- 
shire, New  Jersey,  New  York,  North  Carolina,  North  Dakota, 
Ohio,  Oklahoma,  Oregon,  Pennsylvania,  South  Dakota, 
Tennessee,  Texas,  Utah,  Vermont,  Virginia,  Washington,  West 
Virginia,  Wisconsin,  and  Wyoming. 

P.  V.  ROSS. 

San  Francisco,  July,  1912. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

NATURE,  BASIS,  AND  EXTENT  OF  TAX. 

§  1.  Meaning  of  Inheritance  Tax. 

§  2.  Various  Forms  of  Tax. 

§  3.  Distinction  Between  Various  Taxes. 

§  4.  Tax  not  Regarded  as  Charge  on  Property. 

§  5.  Tax  Considered  as  Charge  on  Succession. 

§  6.  Other  Concepts  of  Tax. 

§  7.  Basis  of  Right  of  State  Legislature  to  Impose  Tax. 

§  8.  Basis  of  Right  of  Congress  to  Impose  Tax. 

§  9.  Origin  and  Extent  of  Inheritance  Taxation. 

§  10.  Important  Features  of  This  Form  of  Taxation. 


CHAPTER  rr. 

CONSTITUTIONALITY  OF  STATUTES. 

§  14.  Constitutionality  in  General. 

§  15.  Express  Constitutional  Provisions. 

§  16.  Constitutionality  of  Federal  Tax. 

§  17.  Constitutionality  of  Municipal  Ordinance. 

§  18.  Unconstitutionality  of  Certain  Statutes. 

§  19.  Rule  of  Uniformity  and  Equality. 

§  20.  Guaranty  of  Equal  Protection. 

§  21.  Discrimination  Between  Relatives. 

§  22.  Discrimination  Against  Nonresidents. 

§  23.  Discrimination  Against  Aliens. 

§  24.  Exemption  of  Estates  of  Limited  Value. 

|  25.  Exemption  of  Charities. 

§  26.  Progressive  Rate  of  Taxation. 

§  27.  Double  Taxation  in  Case  of  Nonresidence. 

|  28.  Detention  of  Property  in  Safe  Deposit. 

(vii) 


Viii  TABLE  OP   CONTENTS. 

CHAPTER  IIL 
INTERPRETATION  OF  STATUTES. 

§  33.  Statutes  Adopted  from  Another  State. 

§  34.  Statutes  in  Pari  Materia. 

§  35.  Strict  or  Liberal  Construction. 

§  36.  Law  Governing  Tax — Retrospective  Operation. 

§  37.  Constitutionality  of   Tax  Imposed  Pending  Administration. 

§  38.  Law  Governing  Estates  in  Remainder. 

§  39.  Law  Governing  Remainders — Constitutional  Questions. 

§  40.  Law  Governing  Powers  of  Appointment. 

§  41.  Amendatory  Act. 

§  42-.  Curative  Act. 

§  43.  Repeal  and  Re-enactment  of  Statute. 

§  44.  Repeal  of  United  States  Statute. 

CHAPTER  IV. 

PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX. 

§  50.  Property  Liable  to  Tax,  in  General. 

§  51.  Transfers  Subject  to  Tax,  in  General. 

§  52.  Increase  or  Decrease  of  Estate  After  Death. 

§  53.  Real  or  Personal  Property. 

§  54.  Property  Affected  by  Equitable  Conversion. 

§  55.  Equitable  Conversion — Pennsylvania  Doctrine. 

§  56.  Estate  of  Surviving  Wife — Dower. 

§  57.  Estate  of  Surviving  Wife — Community  Property. 

§  58.  Estate  of  Surviving  Husband — Curtesy. 

§  59.  Articles  Exempt  to  Widow  and  Children. 

§  60.  Homestead  and  Family  Allowance. 

§  61.  Bequests  for  Funeral  or  Burial  Expenses. 

§  62.  Policy  of  Life  Insurance. 

§  63.  Deposits  in  Bank. 

§  64.  Corporate  Stock  and  Bonds. 

§  65.  Shares  in  Joint  Stock  Association. 

§  66.  United  States  Bonds  and  Securities. 

§  67.  Legacy  to  the  United  States. 

§  68.  Membership  in  Stock  Exchange. 

§  69.  The  Goodwill  of  Business. 

§  70.  Interest  in  Partnership  Property. 

§  71.  Bequest  in  Discharge  of  Debt  or  Obligation. 

§  72.  Advancements. 


TABLE  OF   CONTENTS.  IX 

CHAPTER  V. 

POWERS  OF  APPOINTMENT. 

§  78.  Creation  of  Power  as  Effecting  Taxable  Transfer. 

§  79.  Exercise  of  Power  as  Effecting  a  Taxable  Transfer. 

§  80.  Constitutionality  of  Tax  on  Exercise  of  Power. 

§  81.  Acts  Constituting  an  Exercise  of  Power. 

§  82.  Change  of  Realty  to  Personalty  by  Equitable  Conversion. 

§  83.  Nonresidents  —  Situs  of  Property. 

§  84.  Probate  Court  Having  Jurisdiction. 

§  85.  Rate  of  Taxation  —  Relationship  of  Parties. 

§  86.  Time  for  Assessment  of  Tax. 

CHAPTER  VI. 

LIFE    ESTATES,    REMAINDERS,    AND    CONTINGENT 
INTERESTS. 

§     90.  Life  Estates  and  Annuities. 

§     91.  Vested  Remainders. 

§     92.  Future  and  Contingent  Estates  —  Earlier  New  York  Rule. 

§     93.  Future  and  Contingent  Estates  —  Later  New  York  Ruldt 

§     94.  Future  Contingent  Estates  —  Illinois  Rule. 

§     95.  Future  Contingent  Estates  —  Minnesota   Rule. 

§     96.  Future  Contingent  Estates  —  Pennsylvania  Rule. 

§     97.  Future  Contingent  Estates  —  Wisconsin  Rule. 

§     98.  Future  Contingent  Estates  —  Tennessee  Rule. 

§     99.  Future  Contingent  Estates  —  Massachusetts   Rule. 

§  100.  Future  Contingent  Estates  —  United  States  Rule. 

§  101.  Person  or  Fund  Liable  for  Tax. 

§  102.  Amount  of  Tax  on  Contingent  Remainder. 

§  103.  Law  Governing  Tax  —  Retrospective  Statute. 


CHAPTER 

TRANSFERS  IN  CONTEMPLATION  OF  OR  TO  TAKE 
EFFECT  UPON  DEATH. 

§  110.  Constitutionality  of  Statutes  Imposing  Tax. 

§  111.  Purpose  of  Statutes. 

§  112.  Intention  of  Donor  or  Grantor. 

§  113.  Consideration  for  Transfer,  in  General. 

§  114.  Consideration  of  Support  of  Grantor  or  Others. 

§  115.  Consideration  of  Services. 

§  116.  Situs  of  Property  —  Nonresidence. 


X  TABLE   OF    CONTENTS. 

§  117.  Transfers  in  Contemplation  of  Death,  in  General. 

§  118.  Transfers  in  Contemplation  of  Death — Illustrations. 

§  119.  Determination  of  Taxability  of  Transfer. 

§  120.  Gifts  Inter  Vivos  or  Causa  Mortis. 

§  121.  Transfers  to  Take  Effect  at  Death. 

§  122.  Marriage  Settlements. 

§  123.  Agreements  to  Make  Will. 

§  124.  Transfers  in  Trust,  in  General. 

§  125.  Trusts — Reservation  of  Power  to  Revoke. 

§  126.  Trusts — Income  Payable  to  Transferees. 


CHAPTER  VIII. 
EXEMPTIONS  FROM  TAX. 

§  130.  Constitutionality  of  Exemptions. 

§  131.  Interpretation  of  Exemptions. 

§  132.  Retrospective  Operation  of  Statute. 

§  133.  Exemption  Based  on  Valuation  of  Property. 

§  134.  Manner  of  Determining  Exemption. 

§  135.  Property  in  Foreign  Jurisdiction. 

§  136.  Exemption  Based  on  Relationship  of  Parties. 

§  137.  Adopted  Children. 

§  138.  Persons  to  Whom  Decedent  Stood  as  Parent. 

§  139.  Illegitimate  Children. 

§  140.  Nation,  State  or  Municipality. 


CHAPTER  IX. 
EXEMPTION  OF  CHARITIES. 

§  145.  Charitable    Uses    and    Institutions,    in    General. 

§  146.  Foreign    Charitable    Institutions,    in    General. 

$  147.  Foreign    Charities — Constitutionality    of    Discrimination. 

§  148.  Educational    Institutions. 

§  149.  Religious   Institutions. 

150.  Institutions  for  Support   of  the   Aged  01  Indigent. 

151.  Hospitals  and   Infirmaries. 

152.  Cemetery  Association. 

153.  Masses  for  Repose  of  Souls. 

154.  Societies  for  Prevention  of  Cruelty. 


TABLE   OF   CONTENTS.  XI 

CHAPTER  X. 

CIRCUMSTANCES  AFFECTING  LIABILITY  FOR  TAX. 

§  158.  Compromise  of  Will  Contest  or  Litigation — Pennsylvania  De- 
cisions. 

§  159.  Compromise  of  Will  Contest — Illinois  Decisions. 

§   160.  Compromise  of  Will  Contest — New  York  Decisions. 

§  161.  Compromise  of  Will  Contest — Iowa  Decisions. 

§  1G2.  Compromise  of  Will  Contest — Massachusetts  Decisions. 

§  163.  Compromise  of  Will  Contest — Other  Decisions. 

§  164.  Eenunciation  or  Waiver  of  Legacy. 

§  1C5.  Compensation  to  Executor  or  Trustee. 

CHAPTER  XL 
SITUS  OF  PROPERTY— NONRESIDENCE  OF  PARTIES. 

§   170.  In   General. 

§  171.  Eeal   Estate. 

§  172.  Personal  Property — Nonresidents. 

§   173.  Personal    Property    in    Foreign    States. 

§   174.  Marshaling   Assets — Massachusetts    Eule. 

§  175.  Marshaling  Assets — New  York   Rule. 

§  176.  Marshaling  Assets — New  Jersey  Rule. 

§  177.  Money  and  Deposits  in  Banks  or  Trust  Companies. 

§  178.  Debts  Due   Nonresident. 

5  179.  Notes,  Papers  and  Securities. 

§  180.  Notes  Secured  by  Mortgage  on  Real  Estate. 

§  181.  Corporate  Bonds. 

§  182.  Stock   in    Domestic    Corporations. 

§  183.  Stock  in  Corporation  Organized  in  Two  States. 

§  184.  Stock  in  Foreign   Corporations. 

CHAPTER  XII. 
TRANSFERS  OF  PROPERTY  TO  ALIENS. 

§  190.  In  Absence  of  Treaty  Regulations. 

§  191.  Under  Treaties,  in  General. 

§  192.  Under  Treaty  With  France. 

§  193.  Under  Treaty  With  Bavaria. 

§  194.  Under  Treaty  With  Wurttemberg. 

§  195.  Under  Treaty  With  Italy — "Most  Favored  Nation"  Clause. 

§  196.  Under  Treaty  With  Spain. 

§  197.  Under  Treaty  With  Norway  and  Sweden. 


Ill  TABLE   OF   CONTENTS. 


CHAPTER  XIII. 


§  205.  Distributee  or  His  Share  of  Estate. 

i  206.  Personal  Liability  of  Distributee. 

§  207.  Effect  of  Renunciation  of  Legacy. 

§  208.  Effect  of  Tax  on  Personalty  in  Another  State. 

§  209.  Executors  or  Administrators. 

§  210.  Effect  of  Settlement  of  Accounts  and  Distribution. 

§  211.  Transferees  or   Assignees. 

§  212.  On  Transfer  of  Stocks  and  Deposits. 


CHAPTER  XIV. 
LIEN  OF  TAX. 

§  215.  Statutory  Provisions,   in   General. 

§  216.  Scope  and  Extent  of  Lien. 

§  217.  Priority  of  Liens. 

§  218.  Judicial  Sale  or   Equitable   Conversion   of  Property. 


CHAPTER  XV. 
RATES  OF  TAX. 

S  225.  As  Determined   by  Value   of  Property. 

§  226.  As    Determined   bj*    Relationship    of    Parties. 

§  227.  In  Case  of  Exercise  of  Power  of  Appointment. 

§  228.  In  Case  of  Assignment  of  Legacy. 

§  229.  Law   Governing  in   Case  of   Change   in   Statute. 


CHAPTER  XVI. 
JURISDICTION  OF  COURTS. 

235.  Of  Probate  Courts,  in  General. 

236.  In   Case   of   Powers   of   Appointment. 

237.  In   Constiuction   of   Wills. 

238.  In   Determining   Taxability   and   Value   of  Property. 

239.  In   Issuing   Commission   to   Take   Testimony. 

§  240.     In  Ordering  Production  of  Corporate  Books  and  Papers. 
§  241.     Exclusiveness  of  Probate   Court's  Jurisdiction. 
{  242.     Constitutional  Objection  to  Nonjudicial  Functions. 


TABLE   OF   CONTENTS.  Xlll 

CHAPTER  XVII. 

APPRAISEMENT,  VALUATION,  AND  ASSESSMENT. 

§  250.  Statement  of  Property  and  Persons  Liable  for  Tax. 

§  251.  Appraisers  and  Appraisement,  in  General. 

§  252.  Venue   or  Jurisdiction   of   Proceedings. 

§  253.  Law  Governing  in  Case  of  Change  in  Statute. 

§  254.  Notice  of  Proceedings — Due  Process. 

§  255.  Property  to   be   Included   in   Appraisement. 

§  256.  Valuation  of  Property,   in   General. 

§  257.  Valuation  of  Notes  and  Doubtful  or  Litigated  Claims. 

§  258.  Valuation  of  Corporate  Stock. 

§  259.  Time  of  Which  Valuation  Determined. 

§  260.  Report    of   Appraisers. 

§  261.  Reappraiseinent  of  Property. 


CHAPTER  XVIII. 

DEDUCTIONS  FROM  VALUATION. 

§  270.  Net  Succession  as  Measure  of  Tax. 

§  271.  Powers  of  Appraiser. 

§  272.  Debts  of  Decedent,  in  General. 

§  273.  Debts  Secured  by  Mortgage  on  Real  Estate. 

§  274.  Debts   Owing  by  Nonresident  Decedents. 

§  275.  Apportionment  Between  Exempt  and  Nonexempt  Assets. 

§  276.  Expenses  of  Funeral  and  Interment. 

§  277.  Expenses  of  Administration. 

§  278.  Fees  and  Disbursements  of  Temporary  Administrator, 

5  279.  Expenses  of  Litigation  or  Will  Contest. 

§  280.  Compensation  of  Executors  or  Administrators. 

§  281.  Compensation  of  Trustees. 

§  282.  Commissions  of  Brokers. 

§  283.  Property  Taxes  Paid  by  Executor. 

§  284.  United  States  Succession  Tax. 

§  285.  Homestead,  Exemptions,  and  Family  Allowance. 

§  286.  Property  Misappropriated  by  Executor. 


TABLE  OF   CONTENTS. 


CHAPTER  XIX. 

VACATION    AND    MODIFICATION    OF    ORDERS    OB 

DECREES. 

9  290.  Conclusiveness  of  Orders  and  Decrees. 

5  291.  Vacation  or  Setting  Aside  of  Orders  and  Decrees. 

§  292.  Modification   of   Orders  and  Decrees. 

S  293.  Correction  of  Valuation  of  Property. 


CHAPTER  XX. 
APPEALS. 

§  300.  Persons  Entitled  to  Appeal. 

§  301.  Time  for  Appeal. 

§  302.  Notice  of  Appeal. 

§  303.  Bonds  or  Undertakings. 

§  304.  Other  Appellate  Proceedings. 

CHAPTER  XXI. 
PAYMENT  AND  ENFORCEMENT  OF  TAX. 

§  308.  Method  of  Enforcement,  in  General. 

§  309.  Failure  of  Statute  to  Prescribe  Procedure. 

§  310.  Law  Governing  Procedure. 

§  311.  Accrual  of  Tax  and  Time  for  Payment. 

§  312.  Limitation  of  Actions. 

§  313.  Costs,  Fees  and  Commissions. 

§  314.  Adjudication  in  Another  State — Full  Faith  and  Credit. 

§  315.  Payment  in  Another  State. 

§  316.  Payment  to  State  or  County  Treasurer. 

§  317.  Eeceipts  for  Payment. 

§  318.  Refund  to  Taxpayer. 

§  319.  Recovering  Back  Tax. 

S  320.  Interest  and  Penalties. 


TABLE  OP   CONTENTS.  XV 


CHAPTER  XXII. 

FORMS. 

§  339.  Explanatory. 

§  340.  Petition  for  Appointment  of  Appraiser  in  Estate  of  Resident 
Decedent. 

§  341.  Petition  for  Appointment  of  Appraiser  in  Estate  of  Nonresi- 
dent Decedent. 

§  342.  Order  Appointing  Appraiser. 

§  343.  Oath  of  Appraiser. 

§  344.  Appraiser's  Notice  of  Hearing. 

§  345.  Affidavit  of  Mailing  of  Notice  of  Hearing. 

§  346.  Subpoena  of  Appraiser. 

§  347.  Request  to  Superintendent  of  Insurance. 

§  348.  Report  of  Appraiser. 

§  349.  Order  Fixing  Tax. 

§  350.  Notice   of    Assessment   of   Tax   by   Surrogate. 

§  351.  Notice  of  Appeal  to  Surrogate. 

§  352.  Order  on  Appeal. 

§  353.  Notice  of  Appeal  to  Appellate  Division. 

§  354.  Petition  for  Remission  of  Penalty. 

§  355.  Notice   of   Motion   to   Remit   Penalty. 

§  356.  Order  Remitting  Penalty. 

§  3'57.  Petition  for  Order  Fixing  Tax  Without  Appraiser. 

§  358.  Order  Fixing  Tax  Where  No  Appraiser  Appointed. 

§  359.  Petition  to  Declare  Estate  Exempt. 

§  360.  Order  Exempting  Estate. 

§  361.  Order  Remitting  Report  to  Appraiser. 

§  362.  Composition    Agreement. 

§  363.  Waivers  of  Notice  by  Controller. 

§  364.  Affidavits  for  Appraisal  of  Nonresident's  Estate. 

§  365.  '  Memorandum  Used  by  Appraisers  of  New  York  County  for 
Preparation  of  Affidavits. 

§  366.  District    Attorney    Proceedings — Petition    for    Citation. 

§  367.  District   Attorney   Proceedings — Order   for   Citation. 

§  368.  District  Attorney   Proceedings — Citation. 

§  369.  District  Attorney  Proceedings — Order  Appointing  Appraiser. 

§  370.  District  Attorney  Proceedings — Decree  Fixing  Tax,  Directing 
Payment,  fltc. 


TABLE  OP  CONTENTS. 

CHAPTER  XXIII. 

ARKANSAS  STATUTE. 

(Acts  of  1901,  pp.  S95-S99;  Kirby's  Digest,  pp.  S4S-S44;  Acts  of  1907,  pp. 
8SS-8S4;  Acts  of  1909,  pp.  904-910.) 

I  400.  Transfers  Subject  to  Tax. 

8  401.  Persons  Liable  for  Tax — Lien — Interest — Payment. 

§  402.  Bate  of  Taxation  in  Case  of  Lineal  Descendants. 

§  403.  Bate  of  Taxation  in  Case  of  Collateral  Relatives. 

§  404.  Rate  of  Taxation  in  Other  Cases. 

§  405.  Estates  for  Years  or  Life — Remainders. 

§  406.  Bequests  to  Executors  in  Lieu  of  Compensation. 

§  407.  Time  for  Payment — Interest. 

§  408.  Inventory — Collection  of  Tax. 

i  409.  Legacies  Charged  upon  Real  Estate — Collection  of  Tax. 

§  410.  Valuation  and  Appraisement  of  Property. 

§  411.  Jurisdiction  of  Probate  Court. 

§  412.  Account  of  Executor  not  Settled  Until  Tax  Paid. 

§  413.  Duty  of  Attorney  General — Appointment  and  Compensation  of  At- 
torneys. 

§  414.  Repeal  of  Conflicting  Acts. 


CHAPTER  XXIV. 
CALIFORNIA  STATUTE. 

(Statutes  of  1905,  pp.  S41,  S74;  Statutes  of  1909,  p.  557;  Statutes  of  1911, 

pp.  71S-7S7.) 

§  415.  Transfers  Subject  to  Tax — Lien — Persons   Liable — Market   Value — 

Power  of  Appointment. 

S  416.  Classification  of  Beneficiaries — Tax  Rates  on  Estates  Under  $25,000. 

§  417.  Rates  of  Taxation  on  Estates  Over  $25,000. 

§  418.  Exemptions  from  Taxation. 

§  419.  Estates  for  Years  or  Life — Remainders  and  Contingent  Interests. 

§  420.  Bequests  to  Executors  in  Lieu  of  Compensation. 

§  421.  Time  for  Payment  of  Tax — Interest  and  Discount, 

§  422.  Penalty  for  Nonpayment. 

§  423.  Collection  of  Tax  by  Executor  or  Trustee. 

§  424.  Sale  of  Property  to  Pay  Tax. 

§  425.  Payment  to  County  Treasurer — Duty  of  Controller — Receipts. 

§  426.  Refunding  Excess  Payments. 

§  427.  Transfer  or  Delivery  of  Stock,  Securities,  Deposits — Notice. 

9  428.  Appraisers  and  Appraisement. 

§  429.  Jurisdiction  of  Courts. 

§  430.  Citation  to  Delinquent  Taxpayers. 


TABLE  OF   CONTENTS. 

§  431.  Actions  to  Enforce  Tax  and  Lien — Quieting  Title. 

§  432.  Notice  to  District  Attorney  that  Tax  is  Due — Special  Attorneys. 

§  433.  Costs  of  Proceedings  Against  Delinquents. 

§  434.  Payment  by  County  to  State  Treasurer. 

§  435.  Commissions  of  County  Treasurer. 

§  436.  Employment  of  Attorney  by  County  Treasurer. 

§  437.  Employment  of  Counsel  by  State  Auditor. 

§  438.  Disposition  of  Taxes  Collected. 

§  439.  Refusal  of  Officers  to  Discharge  Duties — Penalty  Therefor. 

§  440.  Definitions  of  Words  Used  in  Statutes. 

§  441.  Repeal  of  Prior  Statutes. 


CHAPTER  XXV. 

COLORADO  STATUTE. 

(Laws  1902,  pp.  49-57 ;  Eev.  Stats.  1908,  pp.  1305-1309;  Laws  1907,  pp.  554, 
555;  Laws  1909,  pp.  460-466.) 

§  442.  Transfers  Subject  to  Tax — Rate  of  Taxation — Exemptions. 

§  443.  Estates  for  Life  or  for  Years  and  Remainders. 

§  444.  Time  for  Payment  of  Tax — Interest  and  Discount. 

§  445.  Collection  of  Tax  by  Executor. 

§  446.  Sale  of  Property  to  Pay  Tax. 

§  447.  Payment  by  Executor  to  County  Treasurer — Receipts  and  Vouchers. 

§  448.  Notice  from  Executor  to  County  Treasurer  of  Estates  Subject  to  Tax. 

§  449.  Refunding  Excess  Payments. 

§  450.  Transfer  or  Delivery  of  Stocks,  Securities  and  Deposits — Notice. 

§  451.  Refund  of  Tax  Erroneously  Collected. 

§  452.  Appraisers  and  Appraisement. 

§  453.  Appraisers  Taking  Illegal  Fees — Penalty. 

§  454.  Jurisdiction  of  Court. 

§  455.  Proceedings  to  Enforce  Tax. 

§  456.  Notice  to  District  Attorney  of  Unpaid  Tax — Proceedings  for  En- 
forcement. 

S  457.  Statement  to  County  Treasurer  of  Unpaid  Taxes. 

§  458.  Payment  of  Expenses  Incurred  by  County  Treasurer. 

§  459.  Record  to  be  Kept  by  State  Treasurer. 

§  460.  Duties  of  County  Treasurer. 

§  461.  Compensation  of  County  Treasurer. 

§  462.  Receipts— Lien  of  Tax — Time  When  Statute  Takes  Effect. 


XVUl  TABLE  OP   CONTENTS. 

CHAPTER  XXVI. 
CONNECTICUT  STATUTE. 

(Gen.  Stats.  190S,  pp.  61S-616 ;  Pub.  Acts.  1903,  pp.  4S,  4S ;  Pub.  Acts.  1905, 
pp.  455,  456;  Pub.  Acts.  1907,  pp.  7S9-7S1;  Pub.  Acts  1909,  pp.  1161-1163; 
Pub.  Acts  1911,  pp.  1478,  1479.) 

§  463.  Exemptions  from  Tax — Nonresident  Decedents. 

§  464.  Transfers  Subject  to  Tax — Bates — Persons  Liable — Interest. 

§  465.  Nonresident  Decedents — Stocks,  Bonds  and  Securities. 

§  466.  Ancillary  Administration  on  Estate  of  Nonresident — Notice. 

§  467.  Effect  of  Failure  to  Take  Out  Ancillary  Administration. 

§  468.  Transfer  or  Delivery  of  Stocks  and  Property — Notice. 

§  469.  Transfer  or  Delivery  of  Stocks  and  Property — Assessment  by  Tax 

Commissioner. 

§  470.  Repeal  of  Certain  Sections. 

§  471.  Inventories  and  Appraisements. 

§  472.  Payment  by  Executor  to  State  Treasurer. 

§  473.  Estates  for  Years  or  for  Life  and  Remainders. 

§  474.  Sale  of  Property  to  Pay  Tax. 

8  475.  Application  by  Treasurer  for  Appointment  of  Administrator. 

§  476.  Jurisdiction  of  Probate  Court — State  Treasurer  to  Represent  State. 

§  477.  Executor's  Account  not  Settled  Until  Taxes  Paid. 

§  478.  Transfers  to  Take  Effect  upon  Death  of  Grantor. 

§  479.  Powers  of  Appointment. 

§  480.  Time  When  Statute  Takes  Effect. 


CHAPTER  XXVII. 
DELAWARE  STATUTE. 

(Laws  of  1869;  Laws  of  1883;  Laws  of  1909,  pp.  514-5SO.) 

\  481.  Transfers  Subject  to  Tax — Rates — Exemptions. 

§  482.  Liability  for  Payment  of  Tax — Exemptions. 

§  483.  Inventory,  Appraisement  and  Valuation — Lien — Collection. 

§  484.  Liability  of  Executor  and  Sureties. 

§  485.  Payment  by  Executor  to  Register  of  Wills. 

§  486.  Receipts  for  Payment  of  Tax. 

§  487.  Duty  of  Register  of  Wills  to  Pay  Over  Money  and  Make  Returns — 
Commissions. 


TABLE  OP   CONTENTS.  XIX 


CHAPTER  XXVIII. 

IDAHO  STATUTE. 

(Laws  of  1907,  pp.  558-571.) 

§  488.  Transfers  Subject  to  Tax — Market  Value — Lien. 

§  489.  Power  of  Appointment. 

§  490.  Classification  of  Beneficiaries— Tax  Eates  on  Estates  Under  $25,000. 

§  491.  Rates  of  Taxation  on  Estates  Over  $25,000. 

§  492.  Exemptions  from  Taxation. 

§  493.  Estates  for  Years  or  Life — Remainders   and   Contingent  Interests. 

§  494.  Bequests  to  Executor  or  Trustee. 

§  495.  Time  of  Payment  of  Tax — Interest  and  Discount. 

§  49<3.  Collection  of  Tax  by  Executor  or  Trustee. 

§  497.  Sale  of  Property  to  Pay  Tax. 

§  498.  Payment  to  County  Treasurer — Duty  of  Controller — Receipts. 

§  4£9.  Refunding  Excess  Payments. 

§  500.  Transfer  or  Delivery  of  Stocks,  Securities,  Deposits — Notice  Thereof. 

§  501.  Appraisers  and  Appraisement. 

§  502.  Appraiser  Taking  Other  Than  Regular  Fees — Penalty  Therefor. 

§  503.  Nonresidents — Jurisdiction  of  Court. 

§  504.  Citation   to   Delinquent   Taxpayer. 

§  504a.  Proceedings  by  District  Attorney  Against  Delinquent. 

§  505.  Entries,  Records  and  Reports  of  County  Clerk. 

§  506.  Costs  of  Proceedings  Against  Delinquent. 

§  507.  Payment  by  County  to  State  Treasurer. 

§  508.  Furnishing  Copy  of  Receipts  to  Persons  Applying  Therefor. 

§  509.  Refusal  of  Officers  to  Discharge  Duties — Penalty  Therefor. 

§  510.  Definitions  of  Words  Used  in  Statute. 

§  511.  Enforcement  of  Lien  of  Tax — Quieting  Title. 

§  512.  Repeal  of  Conflicting  Acts. 


CHAPTER  XXIX. 

ILLINOIS  STATUTE. 

(Laws  of  1905,  p.  301;  Bev.  Stats.  1909,  p.  1897.) 

5  514.  Transfers  Subject  to  Tax — Rates — Exemptions. 

§  515.  Estates  for  Years  or  for  Life  and  Remainders. 

§  516.  Time  for  Payment — Interest  and  Discount — Bond  for  Payment. 

§  517.  Collection  of  Tax  by  Executor. 

§  518.  Liability  of  Executor— Sale  of  Property  to  Pay  Tax. 

§  519.  Payment  by  Executor  to  County  Treasurer — Receipts  and  Vouchers. 

§  520.  Executor  to  Give  Notice  to  County  Treasurer  of  Transfers. 

§  521.  Refunding  Excess  Payments. 

§  522.  Transfer  or  Delivery  of  Stocks,  Securities  and  Deposits — Notice. 

§  523.  Refunding  of  Tax  Erroneously  Paid. 


XX  TABLE  OP   CONTENTS. 

5  524.  Appraisers  and  Appraisement. 

§  525.  Fees  of  Clerk — Inheritance  Tax — Clerk  and  Attorney. 

5  526.  Appraiser  Receiving  Illegal  Fees — Penalty. 

§  527.  Jurisdiction  of  Court. 

§  528.  Citation  to  Delinquent  Taxpayer. 

§  529.  Duty  of  State  Attorney  to  Collect  Tar. 

§  530.  Statement  to  County  Treasurer  of  Unpaid  Taxes. 

§  531.  Allowance  for  Expenses  Incurred. 

§  532.  Record  to  be  Kept  in  Office  of  County  Judge. 

{  533.  Payment  by  County  Treasurer  to  State  Treasurer — Receipts. 

i  534.  Commissions  of  County  Treasurer. 

§  535.  Receipts  for  Payment  of  Tax. 

9  536.  Proceedings  to  Determine  Whether  Transfer  Subject  to  Tax. 

§  537.  Lien  of  Tax. 

§  538.  Contingent  or  Expectant  Estates. 

§  539.  Computation  of  Taxes  on  Expectant  Estates  Under  Former  Statute. 

§  540.  Guardian  for  Person  Under  Disability. 

§  541.  Transfers  Exempt  from  Tax. 

§  542.  Transfers  by  Deed,  Instrument  or  Memoranda. 

§  543.  Certified  Copies  of  Papers. 

§  544.  Repeal  of  Other  Statutes. 


CHAPTER  XXX. 
IOWA  STATUTE. 

(Supplement  Code  1907,  pp.  307-314;  Laws  of  1909,  p.  SI;  Laws  of  1911, 

pp.  50-64.) 

§  545.  Transfers    Subject    to    Tax — Rates — Persons    Liable — Lien — Time    of 

Payment. 

§  546.  Exemptions  from  Tax. 

§  547.  Deduction  of  Debts. 

§  548.  Collection  of  Tax  When  No  Administrator  Appointed. 

§  549.  Appointment  and  Qualification  of  Appraisers. 

§  550.  Issuance  of  Commission  to  Appraisers. 

§  551.  Notice  of  Appraisement — Returns  Filed. 

§  552.  Objections  to  Appraisement. 

5  553.  Appraisement  of  Property — Market  Value — Deduction  of  Debts. 

§"  554.  Relief  from  Appraisement. 

§  555.  Appraisement  of  Deferred  Estates  in  Real  Property. 

§  556.  Estates  for  Years  or  for  Life  and  Remainders  in  Real  Property. 

§  £57.  Estates  for  Years  or  for  Life  in  Personal  Property. 

§  558.  Bond  to  Secure  Payment  of  Tax  on  Deferred  Estates. 

§  559.  Terms  and  Conditions  of  Bonds. 

§  560.  Removal  of  Property  from  State — Penalty. 

§  561.  Value  of  Annuities,  Life,  Term,  and  Deferred  Estates. 

S  562.  Collection  of  Tax. 


TABLE  OP   CONTENTS.  XXI 

§  563.  Deduction  of  Tax  from  Legacy. 

§  564.  Account  of  Executor  not  Settled  Before  Tax  Paid. 

§  565.  Jurisdiction  of  Court. 

§  566.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  567.  Legacies  Charged  upon  Real  Estate. 

§  568.  Interest  on  Delinquent  Taxes. 

§  569.  Information  to  b«  Furnished  State  Treasurer  on  Demand. 

§  570.  Lien  Book  to  be  Kept  by  Clerk  of  Court. 

§  571.  Report  of  Executors — Entry  of  Tax  Liens. 

§  572.  Extension  of  Time  for  Appraisement. 

§  573.  Report  by  Heirs  to  Clerk. 

§  574.  Entries  to  be  Made  by  Clerk  in  Lien  Book. 

§  575.  Clerk  to  Keep  Probate  Record. 

§  576.  Clerk  to  Report  Estates  Subject  to  Tax — Fees. 

§  577.  Duties  of  County  Attorney — Compensation. 

§  578.  Settlement  of  Conflicting  Claims  for  Fees. 

§  579.  Enforcement  of  Payment  of  Tax. 

§  580.  Costs  Taxed  to  Estates. 

§  581.  Delivery  or  Transfer  of  Securities  or  Deposits — Notice. 

§  582.  Transfers  of  Corporate  Stock — Liability  of  Corporation. 

§  583.  Corporations  to  Report  Certain  Stock  Transfers  to  State  Treasurer. 

§  584.  Foreign  Estates — Deduction  of  Debts. 

§  585.  Property  of  Foreign  Estates  not  Specifically  Devised. 

§  586.  Approval  of  Compromise  Settlement. 

§  587.  Unknown  Heirs. 

§  588.  Refund  of  Tax. 

§  589.  Contingent  Estates,  Devises  or  Legacies. 

§  590.  Definitions  of  Terms. 

§  591.  Records  to  be  Kept  by  State  Treasurer. 

§  592.  Repeal  of  Conflicting  Statutes, 


CHAPTER  XXXI. 
KANSAS  STATUTE. 

(General  Statutes  of  1909,  pp.  1997-S004.) 

§  593.  Transfers  Subject  to  Tax — Rates — Persons  Liable — Exemptions. 

§  594.  Property  Out  of  State  or  Nonresident  Within  State. 

§  595.  Payment  of  Tax — Interest — Lien  of  Tax. 

§  596.  Deposit  for  Payment  of  Tax  in  Case  of  Contingent  Gift. 

§  597.  Assessment  of  Tax — Value  of  Property. 

§  598.  Payment  of  Tax  on  Future  Interests. 

§  599.  Bequests  to  Executors  in  Lieu  of  Compensation. 

§  600.  Collection  of  Tax  by  Executor. 

§  601.  Legacy  Charged  upon  Real  Estate. 

§  602.  Testamentary   Provision   for   Payment. 

§  603.  Sale  of  Property  to  Pay  Tax. 


XXil  TABLE  OP   CONTENTS. 

§  604.  Inventory  and  Appraisement — Failure  to  File. 

I  605.  Recording  Inventory  and  Appraisement — Copies  of  Papers, 

§  606:  Tax  on  Stock  Transferred  by  Foreign  Executor. 

§  607.  Tax  on  Assets  Delivered  to  Nonresident. 

§  608.  Refunding  Excess  Payments. 

§  609.  Determination  of  Value  of  Property. 

§  610.  Determination  of  Tax  by  Commission. 

§  611.  Jurisdiction  of  Probate  Court. 

§  612.  Administration  at  Instance  of  Tax  Commission. 

§  613.  Account  of  Executor  not  Settled  Until  Tax  Paid. 

§  614.  Proceedings  for  Recovery  of  Tax. 

§  615.  Retrospective  Operation  of  Statute. 

§  616.  Report  of  County  Treasurer. 

5  617.  Commissions  of  County  Treasurer. 

§  618.  Taxes  to  be  Paid  into  State  Treasury. 

§  619.  Definitions  of  Terms. 


CHAPTER  XXXII. 
KENTUCKY  STATUTE. 

'(Acts  of  1906;  Eussell's  Statutes  (1909),  pp.  1521-15S5.) 

{  620.  Transfers  Subject  to  Tax — Rate  of  Taxation — Persons  Liable. 

§  621.  Estates  for  Years  or  Life — Remainders  and  Contingent  Interests. 

§  622.  Bequests  to  Executors  in  Lieu  of  Compensation. 

§  623.  Time  for  Payment — Interest  and  Discount. 

§  624.  Penalty  for  Nonpayment. 

§  625.  Collection  of  Tax. 

§  626.  Sale  of  Property  to  Pay  Tar. 

§  627.  Payment  by  Executor  to  Sheriff  or  Collector — Receipts  and  Vouchers. 

§  628.  Refund  to  Legatee  of  Overpayment. 

§  629.  Transfer  of  Stock  or  Loans — Payment  of  Tax 

§  630.  Appraisers  and  Appraisement. 

§  631.  Appraiser  Taking  Other  Than  Regular  Fees — Penalty. 

§  632.  Jurisdiction  of  County  Court. 

S  633.  Records  to  be  Kept  by  County  Clerk. 

i  634.  Duties    «f    Sheriff    or    Collector    in    Enforcing    and    Accounting    for 

Taxes. 

(  634a.  Refund  Where  Legacy  Less  Than  Five  Hundred  Dollars. 


TABLE   OP   CONTENTS. 

CHAPTER  XXXIII. 

LOUISIANA  STATUTE. 

(Laws  of  1906,  p.  173 ;  S  Wolff's  Constitution  and  Eevised  Laws  of  1904-08, 

pp.  769-778.) 

!  635.  Transfers  Subject  to  Tax — Rates. 

§  636.  Transfers  not  Subject  to  Tax. 

§  637.  Taking  Possession  of  Succession  Without  Authority  of  Court. 

§  638.  Executor  to  Fix  Amount  of  Tax. 

§  639.  Collection  of  Tax. 

§  640.  Liability  of  Executor — No  Discharge  Until  Tax  Paid. 

§  641.  Duty  of  Heir  When  Administration  not  Ordered  by  Court. 

§  642.  Payment  of  Tax. 

§  643.  Sale  of  Property  to  Pay  Tax. 

§  644.  Liability  of  Heir  for  Legacy  Tax. 

§  645.  Search  by  Tax  Collector. 

§  646.  Appointment  of  Executor  When  Will  Found. 

§  647.  Procedure  Where  No  Will  Found. 

§  648.  Proceedings  by  Heir  or  Legatee — Costs  and  Attorney  Fee. 

§  649.  Rights  of  Creditors  Preserved. 

§  650.  Tax  on  Entire  Succession  to  be  Paid  When  Accepted. 

§  651.  Transfer  or  Delivery  of  Stocks,  Deposits  and  Other  Property. 

§  652.  Burden  of  Proof  to  Establish  Exemption. 

§  653.  Jurisdiction  of  District  Court. 

§  654.  Curator  Ad  Hoc  to  Represent  Nonresident  and  Unknown  Heirs. 

§  655.  Commissions  of  Tax  Collector  and  Clerk  of  Court. 

§  656.  Attorney  to  Assist  Clerk  of  Court — Fees. 

§  657.  Valuation  of  Annuities. 

§  658.  Interest  on  Delinquent  Tax. 

S  659.  Costs  to  be  Borne  by  Mass  of  Succession. 


CHAPTER  XXXIV. 
MAINE  STATUTE. 

(Eevised  Statutes  of  1903,  p.   151;  Laws  of  1905,  p.  131;  Laws  of  1909, 
p.  185;  Laws  of  1911,  p.  173.) 

§  660.  Transfers  Subject  to  Tax — Rates — Persons  Liable. 

§  661.  Estates  for  Years  or  for  Life  and  Remainders. 

§  662.  Bequests  to  Executor  in  Lieu  of  Compensation, 

§  663.  Time  for  Payment  of  Tax — Interest — Lien, 

§  664.  Liability  of  Executor. 

§  665.  Collection  of  Tax  by  Executor. 

§  666.  Legacies  Charged  upon  Real  Estate. 

S  667.  Legacies  for  a  Limited  Period. 


XX17  TABLE  OP   CONTENTS. 

§  668.  Sale  of  Property  to  Pay  Tax. 

i  669.  Account  of  Executor  not  Settled  Until  Tax  Paid. 

§  670.  Filing  Copies  «f  Inventory. 

§  671.  Executor  to  Inform  Board  of  Assessors  of  the  Transfer. 

§  672.  Refunding  Excess  Payments. 

§  673.  Appraisement  and  Valuation  »f  Property. 

S  674.  Jurisdiction  of  Probate  Court  and  Proceedings  Therein. 

§  675.  Fees  of  Judges  er  Registers  of  Probate. 

§  676.  Definitions  of  Terms. 

§  677.  Attorney  General  to  be  Furnished  Lasts  of  Estates  and  Investigate 

Same. 

§  678.  Application  by  Attorney  General  for  Appointment  of  Administrator. 

§  679.  Failure  of  Executor  to  File  Inventory. 

§  680.  Property  Subject  to  Tax  in  Another  State  or  Country. 

§  681.  Report  of  Deaths  to  Attorney  General. 

§  682.  Stock  in  Corporations   Organized  in  Two  or  More   States. 

§  683.  Transfers  of  Stocks,  Bonds,  etc.,  not  Subject  to  Tax. 

§  684.  Transfer  of  Stocks,  etc.,  of  Nonresident  Decedent. 

§  685.  Delivery    or    Transfer   of   Assets    of    Nonresident    Without    Payment 

of  Tax. 

§  686.  Proceedings  to  Recover  Tax. 

§  687.  Retrospective  Operation  of  Statute. 

S  688.  Payment  of  Funds  to  State  Tr§asurer. 


CHAPTER  XXXV. 
MARYLAND  STATUTE. 

(S  General  Laws  of  1904,  pp.  1835-1842;  Laws  of  1908,  pp.  gS8,  SS9.) 

§  689.  Transfers  Subject  to  Tax — Rates — Exemptions. 

§  690.  Payment  of  Tax  by  Executor. 

§  691.  Valuation  of  Personalty — Sale  of  Property  to  Pay  Tar. 

§  692.  Failure  of  Executor  to  Pay  Tax  Within  Thirteen  Months. 

9  693.  Appointment  of  Appraisers  of  Real  Estate. 

§  694.  Warrant  to  Appraisers  of  Real  Estate. 

§  695.  Appraisement  of  Property  Lying  in  More  Than  One  County. 

§  696.  Inventory  of  Real  Estate. 

§  697.  Death  or  Refusal  of  Appraiser  to  Act. 

S  698.  Return  of  Inventory  of  Real  Estate. 

§  699.  Appraisement  Deemed  to  be  True  Value  of  Real  Estate. 

§  700.  Lien  of  Tax. 

§  701.  Collection  of  Tax — Sale  of  Real  Estate. 

§  702.  Estates  for  Life  or  for  Years  and  Remainders. 

§  703.  Determination  of  Value  of  Estate  Less  Than  Absolute  Interest. 

§  704.  Sale  of  Property  to  Pay  Tax. 

§  705.  Liability  of  Executor  on  Bond. 

§  706.  Revocation  of  Executor'*  Letters  for  Failure  to  Perform  Duties. 


TABLE   OP   CONTENTS.  XXV 

§  707.     Powers  and  Duties  of  Administrator  De  Bonis  Non. 

§  708.     Proceedings  Where  No  Administration  Taken  Out. 

§  709.  .  Failure  of  Persons  Entitled  to  Take  Out  Administration. 

f  710.     Application  for  Letters — Inquiry  as  to  Real  Estate. 

§  711.     Receipts  for  Payment  of  Tax. 

§  712.     Payment    to    Treasurer — Commissions    of    Clerks    and    Registers    of 

Wills. 
i  713.     Failure  of  Clerks  or  Registers  to  Account. 


CHAPTER  XXXVI. 

MASSACHUSETTS  STATUTE. 

(Supplement  to  Revised  Laws  of  1902-08,  pp.  S36-S48 ;  Acts  of  1909,  pp. 
647-791;  Acts  of  1910,  p.  430;  Acts  of  1911,  pp.  327,  490.) 

§  714.  Transfers  Subject  to  Tax — Rates — Interest — Exemptions. 

§  715.  Stock  in  Corporation  Organized  Under  Laws  of  More  Than  One  State. 

§  716.  Property  Subject  to  Tax  Under  Laws  of  Another  State. 

§  717.  Time  for  Payment  of  Tax — Remainders — Liens — Interest. 

§  718.  Deposit  in  Lieu  of  Payment  of  Tax. 

§  719.  Assessment  upon  Actual  Value  of  Property. 

§  720.  Payment  of  Tax  on  Future  Interests. 

§  721.  Bequests  to  Executors  in  Lieu  of  Compensation. 

§  722.  Collection  of  Tax  by  Executor— Sale  of  Land. 

§  723.  Legacy  Charged  upon  Real  Estate. 

§  724.  Testamentary  Provision  for  Payment  of  Tax. 

§  725.  Sale  of  Real  Estate  to  Pay  Tax. 

§  726.  Inventory — Penalty  for  Failure  to  File. 

§  727.  Copies  of  Inventory  and  Other  Papers. 

§  728.  Transfers  of  Stock  by  Foreign  Executor. 

§  729.  Transfer    or   Delivery    of    Securities — Notice    to    Treasurer    and    Re- 
ceiver General. 

§  730.  Tax  Commissioner  to  be  Party  to  Petition  by  Foreign  Executor. 

S  731.  Refunding  of  Tax  Paid. 

§  732.  Appraisal  and  Valuation  of  Property. 

§  733.  Determination  of  Amount  of  Tax  by  Commissioner. 

§  734.  Jurisdiction  of  Probate  Court — Liability  of  Executor. 

§  735.  Application  by  Tax  Commissioner  for  Appointment  of  Administrator. 

§  736.  Account  of  Executor  not  Allowed  Until  Tax  Paid. 

§  737.  Proceedings  by  Treasurer  and  Receiver  General  to  Recover  Tax. 

§  738.  Retrospective  Operation  of  Statute. 

§  739.  Construction  of  Statute  With  Reference  to  Other  Laws. 

§  740.  Repeal  of  Other  Legislation. 

§  741.  Powers  of  Appointment. 

§  742.  Refusal  to  Furnish  Tax  Commissioner  With  Information, 

S  743.  Application  of  Provisions  of  This  Act  to  Unpaid  Taxes. 


XXVI  TABLE   OP   CONTENTS. 

§  744.     Application  of  Act  to  Administrators  Appointed  Prior  to  Passage. 
§  745.     Proceedings  to  Determine  Taxes  on  Real  Estate. 

§  746.     Bight  to  Ipspect  Papers  and  .Records  and  Use  Them  in  Legal  Pro- 
ceedings. 


CHAPTER  XXXVII. 

MICHIGAN  STATUTE. 

(Public  Acts  of  1899,  p.  285;  Public  Acts  of  1903,  p.  277;  Public  Acts  of  1907, 
p.  199;  Public  Acts  of  1909,  pp.  71,  700;  Public  Acts  of  1911,  p.  101.) 

§  747.  Transfers  Subject  to  Tax — Rates. 

i  748.  Transfers  Exempt  from  Taxation. 

§  749.  Proceedings  to  Enforce  Tax — Foreclosure  of  Lien — Redemption. 

§  750.  Interest  and  Discount. 

S  751.  Collection  of  Tax  by  Executor — Sale  or  Mortgage  of  Property. 

§  752.  Refund  of  Tax  Erroneously  Paid. 

§  753.  Payment  of  Tax  in  Case  of  Reversions  or  Remainders. 

§  754.  Bequests  to  Executor  in  Lieu  of  Commissions. 

§  755.  Transfer  or  Delivery  of  Stock,  Deposits  or  Securities — Notice. 

5  756.  Jurisdiction  of  Probate  Court — Petition  for  Letters. 

9  757.  Appointment  of  Appraisers — Valuation  of  Property. 

§  758.  Notice  of  Appraisement — Proceedings  and  Expenses. 

I  759.  Report  of  Appraiser — Assessment  of  Tax. 

§  760.  Notice  to  Attorney  General  of  Delinquencies — Proceedings  to  Collect 

Tax. 

§  761.  Receipts — Transfer  Tax-book. 

§  762.  Fees  of  County  Treasurer. 

5  763.  Record  to  be  Kept  by  Probate  Judge. 

§  764.  Copies  of  Letters  and  Forms — Report  of  Register  of  Deeds — Property 

of  Nonresident. 

§  765.  Report  of  County  Treasurer — Examiners  of  Records. 

§  766.  Payment  to  State  Treasurer — Application  of  Funds. 

S  767.  Definitions  of  Terms. 

§  768.  Time  When  Statute  Takes  Effect. 


TABLE  OP   CONTENTS.  XXV11 

CHAPTER  XXXVIII. 

MINNESOTA  STATUTE. 

(Laws  of  1305,  c.  S88;  Revised  Laws  Supplement  1909,  pp.  S59-S66;  Lawt  of 

1911,  pp.  874,  516.) 

§  769.     Transfers  Subject  to  Tax. 

§  770.     Computation  of  Tax. 

§  771.     Kates  of  Taxation. 

§  772.     Kates  of  Taxation. 

§  773.     Transfers  Exempt  from  Taxation. 

§  774.     Time  When  Statute  Takes  Effect — Valuation  of  Property. 

§  775.     Collection  of  Tax  by  Executor. 

§  776.     Payment  to  County  and  State  Treasurer — Receipts. 

§  777.     Lien  of  Tax. 

§  778.     Interest  on  Tax. 

§  779.     Sale  of  Property  to  Pay  Tax. 

§  780.     Legacy  Charged  upon  Real  Estate. 

§  781.     Refund  of  Tax  Erroneously  Paid. 

5  782.     Nonresidents — Transfer    or    Delivery    of    Stocks    and    Securities — 
Notice. 

i  783.     Transfer  or  Delivery  of  Deposits  or  Securities — Notice. 

§  784.     Application  by  Attorney  General  for  Letters  of  Administration. 
Appointment  of  Appraisers. 
Appraisement  at  Full  and  True  Value. 

Notice  of  Appraisement — Proceedings  and  Report — Compensation  of 
Appraisers. 

§  788.     Determination  of  Value  of  Estate  and  Amount  of  Tax. 

§  789.     Notice  of  Tax  for  Which  Estate  is  Liable. 

§  790.     Objections  to  Assessment — Reassessment. 

§  791.     Notice  to  County  Attorney  of  Delinquencies — Proceedings  to  En- 
force Tax. 

§  792.     Records  and  Reports  of  Probate  Court — Report  of  Register  of  Deeds. 

§  793.     Stipulation  by  Attorney  General  of  Amount  of  Tax  to  be  Paid. 

§  794.     Power  of  Attorney  General  to  Issue  Citations  and  Examine  Books 
and  Records. 

5  795.     Refund  of  Tax. 

§  796.     Duty  of  State  Auditor  and  Treasurer. 

§  797.     Seal  of  Attorney  General. 

§  798.     Assistant  Attorney  General  in  Inheritance  Tax  Matters. 

|  799.     Time  When  Act  Takes  Effect. 

§  800.     Repeal  of  Inconsistent  Statutes. 

5  801.     Validity  of  Previous  Proceedings. 

§  802.     Effect  of  This  Act  on  Pending  Proceedings. 


XXV111  TABLE   OP   CONTENTS. 

CHAPTER  XXXIX. 

MISSOURI  STATUTE. 

(Revised  Statutes  of  1899,  sees.  S99-SSS ;  Laws  of  1901,  p.  4S ;  Laws  of  190S,  p. 
62;  Ann.  Stats.  1906,  pp.  446-456.) 

§  804.  Transfers  Subject  to  Tax — Eates — Lien  of  Tax — Persons  Liable. 

§  805.  Time  for  Payment — Interest  and  Discount — Lien — Bond  of  Executor. 

§  806.  Payment  and  Report  by  Collector  to  State  Auditor. 

§  807.  Eevenue  to  be  Known  as  "State  Seminary  Moneys." 

§  808.  Revenue  to  be  Known  as  "Educational  Fund." 

§  809.  Payment  of  Tax  on  Reversions,  Remainders  and  Expectancies. 

§  810.  Bequests  to   Executors  in  Lieu  of  Commissions. 

§  811.  Collection   of  Tax  by  Executor. 

§  812.  Payment  of  Tax  on  Gift  for  a  Limited  Period. 

§  813.  Payment  by  Executor  to  Collector  of  Revenue — Receipts. 

§  814.  Refund  of  Tax. 

§  815.  Executor  to  Notify  Probate  Judge  of  Taxable  Transfers. 

§  816.  Transfer  of  Stocks  or  Loans  by  Foreign  Executor. 

§  817.  Appraisers  anrd  Appraisement. 

§  818.  Determination  of  Value  of  Estate  and  Assessment  of  Tax. 

§  819.  Reappraieement. 

§  820.  Appraiser  Taking  Illegal  Fees — Penalty. 

§  821.  Jurisdiction  of  Probate  Court — Prosecuting  Attorney  to  Represent 

State. 

§  822.  Records  to  be  Kept  by  Probate  Judge. 

§  823.  Reports  to  be  Made  by  Probate  Judge  and  County  Recorder. 

§  824.  Notice  to  Collector  of  Unpaid  Tax — Proceedings  for  Collection. 

§  825.  Receipts  for  Payment  of  Tax. 

§  826.  Commissions  for  Collecting  Tax. 

§  827.  Repeal  of  Inconsistent  Statutes. 


CHAPTER  XL. 

MONTANA  STATUTE. 

(Revised  Codes  of  1907,  sees.  7784-7751.) 

§  828.  Transfers  Subject  to  Tax — Rate  of  Taxation — Exemptions. 

§  829.  Appraisement  of  Contingent  or  Determinable  Estates. 

§  830.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  831.  Time  for  Payment  of  Tax — Interest  and  Discount. 

§  832.  Penalty  for  Nonpayment. 

§  833.  Collection  of  Tax  by  Executor. 

§  834.  Sale  of  Property  to  Pay  Tax. 

§  835.  Payment  to  County  Treasurer — Receipts. 

§  836.  Liability  on  Executor's  Bond. 


TABLE   OP    CONTENTS.  XXIX 

§  837.  Proceedings  upon  Failure  of  Executor  to  Pay  Tar. 

§  838.  Administrator  De  Bonis  Non. 

§  839.  Refund  in  Case  of  Debts  Proved  After  Distribution. 

§  840.  Refund  in  Case  of  Erroneous  Payment. 

§  841.  Transfer  of  Stocks  or  Loans  by  Foreign  Executor. 

§  842.  Appraisers  and  Appraisement. 

§  843.  Appraiser  Taking  More  Than  Regular  Fees — Penaltj. 

§  844.  Jurisdiction  of  Courts. 

§  845.  Citation  to  Compel  Payment. 

§  846.  Proceedings  upon  Failure  to  Administer  Estates. 

§  847.  Action  to  Enforce  Tax. 

§  848.  Statement  by  Clerk  of  Delinquent  Taxes. 

§  849.  Costs  of  Collection. 

§  850.  Record  to  be  Kept  by  Clerk. 

§  851.  Duties  of  County  Treasurer. 

§  852.  Receipts  for  Payment  of  Tax — Records. 

§  853.  Purposes  to  Which  Taxes  Shall  be  Devoted. 

§  854.  Repeal  of  Inconsistent  Acts. 

§  855.  Time  When  Statute  Takes  Effect. 


CHAPTER  XLI. 
NEBRASKA  STATUTE. 

(Compiled  Statutes  of  1905,  sees.  5176-5196;  Compiled  Statutes  of  1911,  pp. 

1646-1659.) 

§  856.  Transfers  Subject  to  Tax — Rate  of  Taxation — Value  of  Property — 

Exemptions. 

§  857.  Estates  for  Years  or  for  Life  and  Remainders. 

§  858.  Time  for  Payment — Interest — Bond. 

§  859.  Collection  of  Tax  by  Executor. 

§  860.  Sale  of  Property  to  Pay  Tax. 

§  861.  Payment  by  Executor  to  County  Treasurer — Receipts. 

§  862.  Information  to  County  Treasurer  of  Taxable  Transfers. 

§  863.  Refunding  Tax  When  Debts  Proved  After  Distribution. 

§  864.  Transfer  of  Stocks  or  Loans  by  Foreign  Executor. 

§  865.  Refund  of  Tax  Erroneously  Paid. 

§  866.  Appraisers  and  Appraisement. 

§  867.  Appraiser  Receiving  More  Than  Legal  Fees — Penalty. 

§  868.  Jurisdiction  of  County  Court. 

§  869.  Proceedings  to  Enforce  Tax. 

§  870.  Notice  to  County  Attorney  of  Refusal  to  Pay  Tax. 

§  871.  Statement  of  County  Judge  and  Clerk  of  Taxable  Transfer*. 

§  872.  Repealed. 

§  873.  Book  and  Records  to  be  Kept  by  County  Judge. 

§  874.  Disposition  to  be  Made  of  Revenue, 

§  875.  Receipts  for  Payment  of  Tax. 

§  876.  Lien  of  Tax 


XXX  TABLE  OP   CONTENTS. 

CHAPTER  XLII. 
NEW  HAMPSHIRE  STATUTE. 

(Laws  of  1905,  pp.  438-436;  Laws  of  1907,  pp.  66-70;  Lawt  of  1911,  pp. 

44-5S.) 

9  877.  Transfers  Subject  to  Tax. 

9  878.  Estates  for  Years  or  for  Life  and  Remainders. 

9  879.  Bequest  to  Executor  in  Lieu  of  Commissions. 

9  880.  Time  for  Payment  of  Bond — Interest  and  Lien. 

9  881.  Collection  of  Tax  by  Executor. 

9  882.  Legacy  Charged  upon  Real  Estate. 

9  883.  Transfer  of  Less  Than  Fee. 

9  884.  Sale  of  Land  to  Pay  Tax. 

9  885.  Statements    and    Accounts    of    Administrator — Inventory    and    Ap- 
praisal. 

9  886.  Copies  of  Papers  to  be  Sent  State  Treasurer. 

9  887.  Notice  to  State  Treasurer  of  Transfer  of  Estate  of  Decedent. 

9  888.  Determination  of  Amount  of  Tax. 

9  889.  Reappraisement — Assessment  of  Tax. 

9  890.  Appeal — Enforcement  of  Lien. 

§  891.  Application  by  State  Treasurer  for  Administration. 

9  892.  Account  of  Executor  not  Allowed  Until  Taxes  Paid. 

9  893.  Appearance  Before  State  Treasurer  in  the  Matter  of  Taxes. 

9  894.  Transfer  of  Stock  or  Obligations  by  Foreign  Executor. 

9  895.  Transfer  of  Securities  or  Assets  Belonging  to  Estate  of  Nonresident. 

9  896.  State  Treasurer  a  Party  to  All  Proceedings. 

9  897.  Books  and  Blanks  to  be  Furnished  Probate  Judge. 

9  898.  Time  When  Statute  Takes  Effect. 


CHAPTER  XLIII. 
NEW  JERSEY  STATUTE. 

(Public  Laws  of  1894,  p.  318;  Public  Laws  of  1898,  p.  106;  Public  Laws  of 
1902,  p.  670;  Public  Laws  of  1903,  p.  128;  Public  Laws  of  1906,  p.  432; 
Public  Laws  of  1908,  p.  200;  Public  Laws  of  1909,  pp.  49,  236,  304,  325; 
Compiled  Statutes  of  1910,  pp.  5301-5311.) 

9  899.  Transfers  Subject  to  Tax — Rates — Persons  Liable — Exemptions. 

9  900.  Estates  for  Years  or  for  Life  and  Remainders. 

9  901.  Expectancies,  Contingent  Estates,  and  Executory  Devises. 

§  902.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  903.  Time  for  Payment — Interest  and  Discount — Bond — Lien. 

9  904.  Penalty  for  Nonpayment  of  Tax. 

§  905.  Collection  of  Tax  by  Executor. 

§  906.  Sale  of  Property  to  Pay  Tax, 


TABLE  OP   CONTENTS.  XXJU 

§  907.  Payment  to  State  Treasurer — Receipts — Records. 

§  908.  Notice  to  Controller  of  Taxable  Transfers. 

§  909.  Refund  of  Tax  on  Proof  of  Debts  After  Distribution. 

§  910.  Transfer  of  Property  of  Nonresident  Decedent. 

§  911.  Liability  of  Property  to  Tax  Due  Prior  to  Passage  of  This  Act. 

§  912.  Valuation  of  Annuities  and  Estates  for  Life  or  for  Years. 

§  913.  Refund  of  Tax  Erroneously  Paid. 

§  914.  Notice  to  Controller  of  Administration  Proceedings. 

§  915.  Examination  of  Papers  and  Records  by   Controller. 

§  916.  Appraisers  and  Appraisement. 

§  917.  Compensation — Penalty  for  Taking  Illegal  Fees, 

§  918.  Jurisdiction   of  Ordinary. 

§  919.  Citation  to  Delinquent  Taxpayer. 

§  920.  Notice  to  Attorney  General  of  Delinquencies — Proceedings. 

§  921.  Records  to  be  Kept  by  Controller. 

§  922.  Compensation  to  Person  Discovering  Taxable  Transfer. 

§  923.  False  Statement  to  Appraiser — Penalty. 

§  924.  Definition  of  Terms. 

§  925.  Constitutionality  of  Sections. 

§  926.  Repeal  of  Inconsistent  Acts — Liens  and  Remedies. 

§  927.  Exemption  of  Certain  Transfers. 

§  928.  Retrospective  Operation  of  Exemption. 

§  929.  Warrant  to  Controller. 


CHAPTER  XLIV. 
NEW  YORK  STATUTE. 

(S  Birdseye's  Rev.  Stats.,  Codes  and  Gen.  Laws  1901,  pp.  S591-S604;  Tax  Lav 
1909,  pp.  123-145;  Laws  of  1911,  pp.  1958,  21S4.) 

§  930.  Transfers  Subject  to  Tax. 

§  931.  Exceptions  and  Limitations. 

§  932.  Rate  of  Taxation. 

§  933.  Accrual  and  Payment  of  Tax. 

§  934.  Discount  and  Interest. 

§  935.  Collection  of  Tax  by  Executors — Lien. 

§  936.  Refund  of  Tax  Erroneously  Paid. 

§  937.  Devises  and  Bequests  in  Lieu  of  Commissions. 

§  938.  Liability  of  Certain   Corporations  to  Tax. 

§  939.  Jurisdiction  of  the   Surrogate. 

§  940.  Appointment  of  Appraisers,  Stenographers  and  Clerks. 

§  941.  Proceedings  by  Appraiser. 

§  942.  Determination  of  Surrogate. 

§  943.  Appeal  and  Other  Proceedings. 

§  944.  Composition  of  Transfer  Tax  upon  Certain   Estates. 

§  945.  Surrogates'  Assistants  in  New  York,  Kings  and  Other  Counties. 

§  946.  Proceedings  by  District  Attorneys. 


XXXU  TABLE   OP   CONTENTS. 

§  947.  Receipts  from  County  Treasurer  or  Controller. 

§  948.  Fees  of  County  Treasurer. 

§  949.  Books  and  Forms  to  be  Furnished  by  the  State  Controller. 

§  950.  Reports  of  Surrogate  and  County  Clerk. 

§  951.  Reports  of  County  Treasurer. 

§  952.  Report    of    State    Controller — Payment    of    Taxes — Refunds    in    Cer- 
tain Cases. 

§  953.  Application  of  Taxes. 

§  954.  Definitions. 

§  955.  Exemptions  in  Article  One  not  Applicable. 

§  956.  Limitation  of  Time. 


CHAPTER  XLV. 
NORTH  CAROLINA  STATUTE. 

(g  Pell's  Eevisal,  1908,  pp.  8448-2454;  Laws  of  1909,  pp.  656-66X.) 

§  957.  Transfers  Subject  to  Tax— Rate  of  Taxation. 

§  958.  Persons  Liable  for  Tax. 

§  959.  Interest  on  Tax. 

§  960.  Collection  of  Tax  by  Executor. 

§  961.  Estates  for  Life  or  Term  of  Years  or  upon  Contingency. 

§  962.  Legacies  Charged  upon  Real  Estate. 

§  963.  Receipts  and  Vouchers. 

§  964.  Transfers  of  Stocks  or  Bonds  by  Foreign  Executor. 

§  965.  Refunding  Tax  When  Debts  Proved  After  Distribution, 

§  966.  Appraisers  and  Appraisement. 

§  967.  Appraiser  Taking  More  Than  Legal  Fees — Penalty. 

§  968.  Records  to  be  Kept  by  Clerk  of  Court. 

§  969.  Proceedings  in  Case  of  Delinquencies. 

§  970.  Compensation  of  Clerk  of  Court. 

§  971.  Liability  of  Clerk  of  Court. 

§  972.  Returns  to  be  Made  by  Clerk  of  Court. 


CHAPTER  XLVI. 
NORTH  DAKOTA  STATUTE. 

(Laws  of  1903,  c.  171;  Bevised  Code  of  1905,  pp.  1S7S-1S76.) 

9  973.  Transfers  Subject  to  Tax — Rates — Lien. 

§  974.  Deduction  of  Debts  and  Costs. 

§  975.  Property  Subject  to  Tax. 

§  976.  Meaning  of  Collateral  Heirs — Pending  Estates. 

§  977.  Property  Belonging  to  Foreign  Estates  Liable  to  Tax  in  This  State. 

§.  978.  Property  of  Foreign  Estate  in  Part  Exempt  in  This  State. 

§  979.  Inventory  to  be  Filed  by  Executor — Lien  of  Tax. 


TABLE   OF    CONTENTS.  XXX111 

§  980.  Appraisement  of  Property. 

§  981.  Estate  for  Life  or  for  Years  and  Remainders. 

§  982.  Estate  for  Life  or  for  Years  and  Remainders. 

§  983.  Bequest  to  Executor  in  Lieu  of  Compensation, 

§  984.  Legacies  Charged  upon  Real  Estate. 

§  985.  Collection  of  Tax  by  Executor. 

§  986.  Time  for  Payment  of  Tax — Interest. 

§  987.  Appraisement  of  Real  Estate. 

§  988.  Payment  by  Executor  to  State  Treasurer. 

§  989.  Filing  Description  of  Real  Estate  in  Case  of  Remainder. 

§  990.  Filing  Appraisement  With  State  Treasurer. 

§  991.  Account  of  Executor  not  Allowed  Until  Taxes  Paid. 

i  992.  Jurisdiction  of  District  Court. 


CHAPTER  XLVIL 
OHIO  STATUTE. 

(General  Code  of  1910,  pp.  1148-1151.) 

§  993.  Transfers  Subject  to  Tax — Rates — Persons  Liable — Interest — Lien. 

§  994.  Exemptions  from  Tax. 

§  995.  Estates  for  Life  or  for  Years  and  Remainder. 

§  996.  Bequests  in  Lieu  of  Compensation. 

§  997.  Payment  of  Tax — Interest  and  Discount. 

§  998.  Collection  of  Tax  by  Executor. 

§  999.  Legacy  Charged  upon  Real  Estate. 

§  1000.  Gift  for  Limited  Period. 

§  1001.  Sale  of  Property  to  Pay  Tax. 

§  1002.  Inventory  and  Assessment — Duty  of  Auditor  and  Treasurer. 

§  1003.  Notice  to  Probate  Judge  of  Taxable  Transfers. 

§  1004.  Refund  of  Tax  in  Certain  Cases. 

§  1005.  Valuation  and  Appraisement  of  Property. 

§  1006.  Jurisdiction  of  Probate  Court. 

§  1007.  Statement   to   County   Auditor   of   Transfers — Record   by   Probate 

Judge. 

§  1008.  Fees  of  Officers  in  Collecting  Tax. 

§  1009.  Account  of  Executor  not  Allowed  Until  Taxes  Paid. 

§  1010.  Meaning  of  the  Word  "Property." 


TABLE   OP   CONTENTS. 


CHAPTER  XLVIII. 

OKLAHOMA  STATUTE. 

(Laws  of  1907-08,  pp.  733-748;  Compiled  Laws  of  1909,  pp.  1549-1558.) 

§  1011.  Transfers  Subject  to  Tax  —  Market  Value  of  Property. 

§  1012.  Bate  of  Taxation  in  Certain  Cases. 

§  1013.  Bate  of  Taxation  in  Other  Cases. 

§  1014.  Exemptions  from  Tax. 

§  1015.  Lien  of  Tax  —  Payment  —  Receipts. 

§  1016.  Interest  and  Discount. 

§  1017.  Collection  of  Tax  by  Executor—Sale  of  Property. 

§  1018.  Refunding  Tax  Paid. 

§  1019.  Bond  to  Secure  Deferred  Payments. 

§  1020.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  1021.  Transfer  of  Stock  or  Obligations  by  Foreign  Executor  —  Notice. 

§  1022.  Jurisdiction  of  County  Court. 

§  1023.  Appointment  of  Appraisers  and  Valuation  of  Property. 

§  1024.  Proceedings  by  Appraiser  —  Compensation. 

§  1025.  Report  of  Appraiser. 

§  1026.  Duty  of  Insurance  Commissioner. 

§  1027.  Duty  of  State  Auditor. 

§  1028.  Guardian  of  Person  Under  Disability  —  Reappraisement. 

§  1029.  Procedure  to  Enforce  Unpaid  Tax. 

5  1030.  Books  to  be  Furnished  by  Stats  Auditor. 

S  1031.  Report  of  County  Judge. 

§  1032.  Report  of  County  Treasurer. 

§  1033.  Extensions  and  Compromise  by  County  Treasurer. 

§  1034.  Receipts  and  Their  Registration. 

§  1035.  Disposition  of  Revenue. 

$  1036.  Interpretation  of  Words  Used  in  Statute. 


CHAPTER  XLIX. 
OREGON  STATUTE. 

(Laws  of  1903,  pp.  49-63;  Laws  of  1905.  p.  309;  Laws  of  1909,  p.  60;  1  Lor  ft 
Oregon  Laws,  pp.  675-689.) 

§  1037.  Transfers  Subject  to  Tax — Exemptions. 

§  1038.  Rates  of  Taxation. 

§   1039.  Time  for  Payment. 

§  1040.  Collection  of  Tax  by  Executor. 

§  1041.  Payment  to  State  Treasurer — Receipts. 

§  1042.  Lien  of  Tax. 

§  1043.  Interest  and  Discount. 

§  1044.  Sale  of  Property  to  Pay  Tax, 


TABLE   OP    CONTENTS.  XXXV 

S  1045.  Legacy  for  Limited  Period  or  Charge  upon  Real  Estate. 

§  1046.  Refund  of  Tax  Erroneously  Paid. 

§  1047.  Transfer  of  Stock  or  Obligations  by  Foreign  Executor. 

§  1048.  Delivery  of  Deposits  or  Securities — Notice. 

§  1049.  Payment  Deferred — Bond. 

§  1050.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  1051.  Jurisdiction  of  County  Court. 

§  1052.  Notice  to  State  Treasurer  of  Transfer — Valuation  of  Property. 

§  1053.  Duty  of  Executor  to  Make  Inventory  and  Appraisement. 

§   1054.  Extension  of  Time  for  Appraisement. 

§  1055.  Inventory  and  Appraisement  to  be  Sent  to  State  Treasurer. 

§  1056.  Court  may  Act  on  Appraisement  or  Require  Another. 

§  1057.  Appointment  of  Appraisers. 

§  1058.  Time  for  Appraisement — Life  and  Future  or  Contingent  Estates. 

§  1059.  Appraisement — Time  and  Place — Fees  of  Appraiser. 

§  1060.  Report  of  Appraisers — Fili  \<r  in  County  Court. 

§  1061.  Notice  of  Determination  of  Value. 

§  1062.  Reappraisement  and  Assessment. 

S  1063.  Duty  of  Treasurer  When  Tax  Unpaid. 

§  1064.  Books  and  Forms  to  be  Furnished  by  Secretary  of  State — Entries  by 

Courts. 

§  1065.  Reports  by  Judges  and  Custodian  of  Deeds  and  Records. 

§  1066.  Receipts  to  be  Furnished  by  State  Treasurer. 

§   1067.  Recording  of  Receipts. 

§  1068.  Compromise  or  Settlement  of  Tax. 

§  1069.  Reports  to  be  Furnished  by  Executor. 

§  1070.  Appellate  Proceedings. 

§  1071.  Failure  to  Produce  Will — Penalty. 

§  1072.  Administering  Personal  Estate  Without  Proving  Will — Penalty. 

§  1073.  Notice  to  State  Treasurer  of  Transfer. 

§  1074.  Property  Subject  to  Tax. 

§  1075.  Property  in  State  Belonging  to  Nonresident  Decedent. 

§  1076.  Compensation  of  Officers. 

§  1077.  Payment  of  Expenses  and  Disbursement. 

§  1078.  Appraiser  Taking  More  Than  Regular  Fees — Penalty. 


CHAPTER  L. 
PENNSYLVANIA  STATUTE. 

(1  Purdon's  Digest,  pp.  603-610;  Laws  of  1905,  p.  258;  Laws  of  1911,  p.  lit.) 

§  1079.  Estates  Subject  to  Tax— Rates. 

§  1080.  Estates  Subject  to  Tax— Rates. 

§  1081.  Executor  not  Discharged  Until  Tax  Paid. 

§  1082.  Transfers  not  Subject  to  Tax. 

§  1083.  Estates  of  Limited  Value  Exempt. 

§  1084.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  1085.  Estate  for  Years  or  for  Life  and  Remainder. 


XXXVI  TABLE  OF   CONTENTS. 

9  1086.  Interest  and  Discount. 

§  1087.  Collection  of  Tax  by  Executor. 

§  1088.  Legacies  for  Limited  Period  or  upon  Contingency. 

§  1089.  Legacy  Charged  upon  Real  Estate. 

§  1090.  Notice  to  County  Register  of  Transfer. 

i  1091.  Receipts  for  Payment. 

§  1092.  Transfer  of  Stocks  or  Loans  by  Foreign  Executory 

§  1093.  Refund  of  Tax. 

§  1094.  Appraisers  and  Appraisement. 

§  1095.  Compensation  of  Appraisers. 

§  1096.  Appointment  of  Expert  as  Appraiser. 

§  1097.  Appraiser  Taking  More  Than  Regular  Pee — Penalty. 

§  1098.  Records  to  be  Kept  by  Register  of  Wills. 

§  1099.  Report  by  Register  to  Auditor  General. 

§  1100.  Proceedings  to  Enforce  Tax. 

§  1101.  Citation  to  Parties  in  Case  of  Unpaid  Tar. 

f  1102.  Employment  of  Attorney  to  Sue  for  Tax. 

§  1103.  Compensation  of  Register  for  Collecting  Tax. 

§  1104.  Bond  of  Register. 

§  1105.  Collection  by  County  Treasurer. 

§  1106.  Returns  and  Payment  by  Register  to  State  Treasurer. 

§  1107.  Lien  of  Tax.    . 

§  1108.  Refund  of  Tax  Erroneously  Paid. 

§  1109.  Application  for  Repayment  of  Tax. 

§  1110.  Refund  of  Tax  When  Estate  was  not  Subject  Thereto. 

§  1111.  Bequest  for  Burial  Lot. 

§  1112.  Time  When  Statute  Takes  Effect. 


CHAPTER  LI. 

SOUTH  DAKOTA  STATUTE. 

(Laws  of  1905,  pp.  54-60.) 

§  1113.  Transfers  Subject  to  Tax — Rates  of  Taxation — Market  Value. 

§  1114.  Estates  for  Years  or  for  Life  and  Remainders. 

§  1115,  Time  for  Payment  of  Tax. 

§  1116.  Collection  of  Tax  by  Executor. 

§  1117.  Sale  of  Property  to  Pay  Tax. 

§  1118.  Payment  to  State  Treasurer — Receipts  and  Vouchers. 

§  1119.  Notice  to  County  Treasurer  of  Taxable  Transfers, 

§  1120.  Refund  in  Case  of  Debts  Proved  After  Distribution. 

§  1121.  Transfer  of  Stock  or  Loans  by  Foreign  Executor. 

§  1122.  Refund  in  Case  of  Erroneous  Payment. 

§  1123.  Appraisers  and  Appraisement. 

§  1124.  Appraiser  Taking  More  Than  Regular  Fee — Penalty. 

S  1125.  Jurisdiction  of  County  Court. 

S  1126.  Citation  to  Delinquent  Taxpayer. 


TABLE   OF   CONTENTS.  XXXVU 


§  1127.  Notice  to  State's  Attorney  of  Unpaid  Tax. 

§  1128.  Statement  of  County  Treasurer  of  Unpaid  Taxes. 

§  1129.  Books  and  Records  to  be  Kept  by  Clerk  of  Court. 

§  1130.  Receipts  for  Taxes  Paid. 

§  1131.  Lien  of  Tax. 

5  1132.  Expenses  Incurred  in  Enforcing  Tax. 

§  1133.  Payment  to  State  Treasurer. 


CHAPTER  LIT. 
TENNESSEE  STATUTE. 

(Acts  of  189S,  cc.  89,  174;  Shannon's  Code  (1906),  pp.  S8Z-S89 ;  Shannon's 
Supp.  Code  (1897-1903),  pp.  107,  108;  Acts  of  1909,  p.  1761.) 

§  1134.  Transfers  Subject  to  Tax — Rates — Exemptions. 

§  1135.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  1136.  Estate  for  Years  or  for  Life  and  Remainders— Time  of  Payment. 

§  1137.  Estate  for  Years  or  for  Life  and  Remainders — Valuation. 

§  1138.  Lien  of  Tax — Report  of  Personal  Property  and  Security  for  Tax. 

§  1139.  Interest  and  Discount. 

§  1140.  Collection  of  Tax  by  Executor. 

§  1141.  Legacy  for  Limited  Period  or  upon  Contingency. 

§  1142.  Legacy  Charged  upon  Real  Estate. 

§  1143.  Information  of  Transfers  to  Clerk  of  County  Court. 

§  1144.  Payment  to  Clerk  of  County  Court — Receipts  and  Vouchers. 

§  1145.  Transfer  of  Stock  or  Loans  by  Foreign  Executor. 

§  1146.  Refund  of  Tax  in  Case  of  Debts  Proved  After  Distribution. 

§  1147.  Appraisers  and  Appraisement. 

§  1148.  Appraiser  Receiving  More  Than  Regular  Fees — Penalty. 

§  1149.  Records  to  be  Kept  by  Clerk  of  Court. 

§  1150.  Proceedings  to  Enforce  Tax. 

§  1151.  Sale  of  Property  to  Pay  Tax. 

§  1152.  Time  for  Bringing  Suit  to  Enforce  Tax. 

§  1153.  Trial  and  Appeal — Attorney  Fees. 

§  1154.  Proceedings  Where  Clerk  Discovers  Unpaid  Tax. 

§  1155.  Suit  by  Clerk  to  Enforce  Tax. 

§  1156.  Jurisdiction  of  County  Courts — Appeals. 

§  1157.  Fees  and  Costs  in  County  and  Circuit  Courts. 

§  1158.  Suits  by  Clerk — Fees — Attorneys — Parties — Costs. 

§  1159.  Bond  of  Clerk  of  Court. 

§  1160.  Payment  of  Tax  to  State  Treasurer. 

§  1161.  Lien  of  Tax. 

§  1162.  Attorney  General  to  Represent  Government. 

§  1163.  Bond  of  Executors. 

§  1164.  Duty  of  Chancery  Court  to  See  Tax  Paid — Receipts  and  Vouchers. 

§  1165.  Appraisers — Oath  and  Compensation. 

§  1166.  Definition  of  "County  Court." 


xxxvm 


TABLE  OP   CONTENTS. 


CHAPTER  LIIL 
TEXAS  STATUTE. 

(Acts  of  1907,  pp.  497-505;  Supplement  to  Sayles'  Texas  Civil  Statutes  of 
1908-10,  pp.  S87-S9S.) 

5  1167.  Transfers  Subject  to  Tax — Rates  of  Taxation. 

§  1168.  Estates  for  Years  or  for  Life  and  Remainder. 

§  1169.  Bequest  to  Executor  in  Lieu  of  Compensation, 

§  1170.  Inventory  to  be  Filed  by  Executor. 

§  1171.  Proceedings  When  No  Administration  Applied  for. 

§  1172.  Appraisers  and  Appraisement. 

§  1173.  Determination  of  Amount  of  Tax — Lien  and  Interest. 

§  1174.  Collection  of  Tax  by  Executor — Sale  of  Property. 

§  1175.  Legacy  Charged  upon  Real  Estate. 

§  1176.  Payment  to  Collector  of  Taxes — Receipts. 

§  1177.  Action  to.  Recover  Tax  from  Executor. 

§  1178.  Payment  to  State  Treasurer. 

§  1179.  Deposits  of  Moneys  as  General  Revenue  Fund. 

§  1180.  Refund  in  Case  of  Debts  Proved  After  Distribution. 

§  1181.  Account  of  Executor  not  Allowed  Until  Tax*  Paid. 

§  1182.  Proceedings  Where  No  Administration  Necessary. 


CHAPTER  LIV. 
UTAH  STATUTE. 

(Laws  of  1905,  pp.  198-209.) 

§  1183.  Transfers  Subject  to  Tax — Rates — Lien  of  Tax — Exemptions. 

§  1184.  Deduction    of    Debts. 

§  1185.  Appointment  of  Appraisers. 

§  1186.  Appraiser  Receiving  Illegal  Fees — Penalty. 

§  1187.  Issuance  of  Commissions  to  Appraisers. 

§  1188.  Notice  and  Filing  of  Appraisement. 

§  1189.  Objections  to  Appraisement  and  Hearing  Thereon. 

§  1190.  Action   in    Pending   Cases. 

§  1191.  Time  for  Appraisement  and  Assessment — Sale  of  Property  to  Pay 

Tax. 

§  1192.  Estates  for  Years  or  for  Life  and  Remainders. 

§  119.3.  Bequests  to  Executors  in  Lieu  of  Compensation. 

§  1194.  Legacies   Charged  upon   Real   Estate. 

§  1195.  Collection  of  Tax  by  Executor. 

§  1196.  Payment  to  State  Treasurer — Interest. 

§  1197.  Collection  of  Tax  by  Executor. 

§  1198.  Account  of  Executor  not  Settled  Until  Tax  Paid. 

§  1199.  Jurisdiction  of  District  Court. 


TABLE  OF   CONTENTS.  XXXIX 

1200.  Information  to  be  Furnished  by  Executor  to  State  Treasurer. 

1201.  Inheritance  Tax  and  Lien  Book  to  be  Kept  by  Clerk. 

1202.  Report  of  Executor — Entry  of  Real  Estate  in  Lien  Book. 

1203.  Extension  of  Time  for  Appraisement. 

1204.  Entries  in  Tax  and  Lien  Books — Index. 

1205.  Record  to  be  Kept  by  Clerk. 

1206.  Duty  of  Clerk  to  Make  Examinations  and  Investigations. 

1207.  Duties  of  Court  and  District  Attorney. 

1208.  Costs  of  Proceedings. 

1209.  Transfer  or  Delivery  of  Deposits  or  Assets — Notice. 

1210.  Foreign  Estates — Assessment  of  Tax. 

1211.  Foreign   Estates — Assessment  and  Payment  of  Tax. 

1212.  Transfer  of  Corporate  Stock  by  Foreign  Executor. 

1213.  Compromise  by   State   Treasurer. 

1214.  Application  of  Statute  to  Pending  Estates. 

1215.  Repeal  of  Prior  Statutes. 

1216.  Time  When  Statute  Takes  Effect. 


CHAPTER  LV. 

*  VERMONT  STATUTE. 

(Public  Statutes  of  1906,  pp.  240-256;  Laws  of  1908,  pp.  S7-S9 ;  Laws  of  1910, 

pp.  57-59.) 

§  1217.  Definitions  of  Terms. 

§  1218.  Transfers  Subject  to  Tax — Rates. 

§  1219.  Transfers  Intended  to  Take  Effect  at  Death. 

§  1220.  Effect  of  Payment  of  Tax  to  Another  State. 

§  1221.  Rebate  in  Case  of  Payment  of  Tax  to  Another  State. 

§  1222.  Exemption  of  Gifts  for  Burial  Lots. 

§  1223.  Collection  of  Tax  by  Executor. 

§  1224.  Sale  of  Property  to  Pay  Tax. 

§  1225.  Property  not  Delivered  Until  Tax  Paid— Lien  of  Tax. 

§  1226.  Failure  of  Executor  to  Collect  Tax. 

§  1227.  Legacy  Charged  upon  Real  or  Personal  Estate. 

§  1228.  Account  of  Executor  not  Allowed  Until  Tax  Paid. 

§  1229.  Jurisdiction  of  Probate  Court. 

§  1230.  Appeals  to  County  Court. 

§  1231.  Certifying  Case  to  Supreme  Court. 

§  1232.  Hearing  in  Supreme  Court. 

§  1233.  Costs  of  Proceedings. 

§  1234.  Determination  of  Value  of  Property  and  Amount  of  Taxes. 

§  1235.  Report  by  Probate  Court  to  Commissioner  of  Taxes. 

§  1236.  Value  of  Legacy  or  Distributive  Share. 

§  1237.  Value  of  Gift  to  Take  Effect  at  Death. 

§  1238.  Appointment  of  Appraisers. 

§  1239.  Warrant  to  Appraisers. 


Xl  TABLE  OP   CONTENTS. 

§  1240.  Oath  of  Appraisers — Notice  to  Parties. 

§  1241.  Authority  of  Appraisers  as  to  Witnesses. 

§  1242.  Findings  and  Eeports  of  Appraisers. 

§  1243.  Fees  of  Appraisers. 

§  1244.  Agreement  by  Commissioner  of  Taxes  With  Executor  as  to  Valu- 
ation. 

8   1245.  Expiration  of  Such  Agreement  in  Writing. 

§  1246.  Filing  of  Agreement  With  Various  Officers. 

§  1247.  Affirmance  or  Setting  Aside  of  Agreement. 

§  1248.  Effect  of  Setting  Aside  Agreement. 

§  1249.  Determination  of  Value  of    Life  or  Contingent  Estate. 

§  1250.  Determination  of  Value  of  Annuities,  etc. 

§  1251.  Valuation  of  Yearly  Income. 

§  1252.  Mortality  and  Discount  Tables. 

§  1253.  Estates  for  Life  or  for  Years  and  Remainders. 

§  1254.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  1255.  Receipts  to  be  Issued  by  State  Treasurer. 

§  1256.  Rebate  in  Case  of  Excessive  Payment. 

§  1257.  Time  for  Payment  of  Tax. 

§  1258  Payment  of  Tax  on  Delivery  of  Distributive  Share. 

§  1259.  Extension  of  Time  in  Certain  Cases. 

§  1260.  Extension  of  Time  Where  Value  not  Determinable. 

§  1261.  Records  to  be  Kept  of  Extension  of  Time. 

§  1262.  Time  for  Payment  of  Tax. 

§  1263.  Inventory  of  Property. 

§  1264.  Failure  to  File  Inventory. 

§  1265.  Interest  on  Taxes. 

§  1266.  Reports  to  be  Made  by  Register  of  Probate. 

§  1267.  Report  to  be  Made  by  Register  of  Probate  to  Commissioner  of 
Taxes. 

§  1268.  Application  by  Tax  Commissioner  for  Administration. 

§  1269.  Notice  to  Commissioner  of  Taxes  of  Taxable  Transfers. 

§  1270.  Copies  of  Papers  and  Records. 

§  1271.  Refusal  of  Officer  to  Furnish  Copies. 

§  1272.  Transfers  of  Stock  or  Obligations  by  Foreign  Executor. 

§  1273.  Penalty  for  Recording  Transfer  of  Stock  Without  Payment  of  Tax. 

§  1274.  Transfer  or  Receipts  of  Securities  or  Assets  by  Foreign  Executor 
or  Legatee. 

§  1275.  Transfer  to  Foreign  Executor  not  Made  Until  Taxes  Paid. 

§  1276.  Failure  to  Mail  or  Deliver  Notice. 

§  1277.  Payment  of  Bank  Deposit. 

§  1278.  Certificate  of  Nonliability  by  Tax  Commissioner. 

§  1279.  Notice  by  Bank  to  Tax  Commissioner. 

§  1280.  Bank  not  to  Pay  Deposit  Without  Consent  of  Tax  Commissioner. 

§  1281.  Failure  of  Bank  or  Trust  Company  to  Obey  Law — Penalty. 

§  1282.  Petition  by  Tax  Commissioner  to  Determine  Amount  of  Tax  Due. 

§  1283.  Service  of  Petition. 

§  1284.  Hearing  in  Court  of  Chancery. 


TABLE  OP   CONTENTS.  ill 

§  1285.  Appellate  Proceedings. 

§  1286.  Proceedings  Installed  by  Tax  Commissioner  in  Probate  Court. 

§  1287.  Jurisdiction  of  Court  in  Such  Proceedings. 

§  1288.  Issuance  of  Letters  of  Administration. 

§  1289.  Jurisdiction  of  Court  After  Issuance  of  Letters. 

§  1290.  Production  of  Books  of  Accounts,  Eecords,  etc. 

§  1291.  Power  of  Probate  Court  to  Issue  Summons  or  Citation. 

§  1292.  Compensation  of  Witnesses. 

§  1293.  Penalty  for  Befusal  to  Appear  or  Testify  Before  Probate  Court. 

§  1294.  Eeports  of  Listers. 

§  1295.  False  Returns  or  Report — Perjury. 

§  1296.  Time  When  Statute  Takes  Effect. 

§  1297.  Liabilities  Already  Accrued  Under  Previous  Statutes. 


CHAPTER/  1.V1. 

VIRGINIA  STATUTE. 

(Acts  of  1903,  c.  148;  £  Code  (1904),  p.  2219;  Acts  of  1910,  pp.  229,  tSO ; 
S  Code  Supp.  (1910),  pp.  580,  5S1.) 

§  1298.  Transfers  Subject  to  Tax — Rates — Exemptions. 

§  1299.  Collection  of  Tax  by  Personal  Representative. 

§  1300.  Collection  of  Tax  on  Real  Estate — Lien  and  Sale. 

§  1301.  Payment  to  County  Treasurer. 

§  1302.  Determination    of   Tax   by   Court — Duties  of   Clerk,   Auditor   and 

Treasurer. 

§  1303.  Penalty  for  Failure  to  Pay  Tax. 

CHAPTER  LVII. 

WASHINGTON  STATUTE. 

(2  Remington  $  Ballinger's  Codes  and  Statutes,  pp.  2082-S088;  Laws  of  1911, 

p.  60.) 

S  1304.  Transfers  Subject  to  Tax — Deductions — Interest — Lien. 

§  1305.  Rates  of  Taxation. 

§  1306.  Property  Subject  to  Tax. 

§  1307.  Property  Belonging  to  Foreign  Estate. 

§  1308.  Appraisement  of  Property  and  Collection  of  Tar. 

§  1309.  Estates  for  Life  and  Remainder  in  Favor  of  Lineal  Descendant. 

§  1310.  Estate  for  Life  in  Favor  of  Collateral  Relatives. 

§    l.".ll.  Bequest  to  Executor  in  Lieu  of  Commissions. 

§  1312.  Legacy  Charged  upon  Real  Estate. 

§  1313.  Collection  of  Tax  by  Executor. 

§  1314.  Payment  to  State  Treasurer — Receipts — Interest. 

§  1315.  Appraisers  and  Appraisement. 

§  1316.  Transfer  of  Stock  or  Obligations  by  Foreign  Executor. 


TABLE   OP   CONTENTS. 

§  1317.  Statement  of  Character  of  Property  and  Names  of  Heirs. 

§  1318.  Extension  of  Time  for  Filing  Appraisement. 

§  1319.  Compromise  by  Tax  Commissioners. 

S  1320.  Powers  and  Duties  of  Tax  Commissioners. 

$  1321.  Exemptions  of  Charitable  Institutions. 


CHAPTER  LVIII. 

WEST  VIRGINIA  STATUTE. 
(Code  of  1906,  pp.  489-499 ;  Code  Supplement  of  1909,  pp.  S06-810.) 

§  1322.  Transfers  Subject  to  Tax. 

§  1323.  Bates  of  Taxation  in  Certain  Cases. 

§  1324.  Bates  of  Taxation  in  Other  Cases. 

§  1325.  Exemptions  from  Tax. 

§  1326.  Determination  of  Market  Value  of  Property. 

§  1327.  Bequests  to  Executor  in  Payment  of  Debt  or  in  Lieu  of  Compensa- 
tion. 

§  1328.  Estates  for  Years  or  for  Life — Bemainder  and  Contingent  Interests. 

§  1329.  Situs  of  Personal  Property. 

§  1330.  Lien  of  Tax. 

§  1331.  Suspension  of  Payment  of  Tax. 

§  1332.  Interest  on  Tax. 

§  1333.  Payment  of  Tax. 

§  1334.  Transfer  of  Stocks  or  Securities  by  Foreign  Executor. 

§  1335.  Duty  of  County  Clark  or  Court  to  Beport  Transfers. 

§  1336.  Statement  by  Executor  of  Transfers  Subject  to  Tax. 

§  1337.  Ascertainment  by  Tax  Commissioner  of  Taxable  Transfers — Cer- 
tificates. 

§  1338.  Failure  to  Beport  Transfers  to  Tax  Commissioner — Proceedings. 

§   1339.  Becording  Certificates  of  Tax  Commissioner. 

§  1340.  Assessment  of  Tax  by  Commissioner. 

§  1341.  Payment  of  Tax  into  Treasury — Certificate  of  Payment. 

§  1342.  Enforcement  of  Tax. 

§  1343.  Appeals  from  Assessment. 

§  1344.  Fees  of  Clerk  of  County  Court. 

§  1345.  Account  of  Fiduciaries  not  Allowed  Without  Certificate  of  Tax 
Commissioner.  • 

§  1346.  Compromise  by  Tax  Commissioner. 

§  1347.  Liability  of  Fiduciaries  and  Sureties. 

$  1348.  Penalty  for  Failure  to  Discharge  Duties. 

S  1349.  Inspection  of  Books  by  Tax  Commissioner. 


TABLE   OF   CONTENTS. 

CHAPTER  LIX. 

WISCONSIN  STATUTE. 

(Laws  of  190S,  pp.  65-81;  Laws  of  1905,  p.  162;  Laws  of  1907,  pp.  58,  585; 
Laws  of  1909,  pp.  6S5-647 ;  Laws  of  1911,  pp.  524,  644.) 

§  1350.  Transfers  Subject  to  Tax — Value  of  Property. 

§  1351.  Primary  Kates  of  Taxation. 

§  1352.  Other  Rates  of  Taxation. 

§  1353.  Exemptions  from  Tax. 

§  1354.  Lien  of  Tax — Payment  to  Treasurer — Receipts — Time  for  Payment. 

§  1355.  Interest   and   Discount. 

§  1356.  Collection  of  Tax  by  Executor — Sale  of  Property. 

§  1357.  Refund  of  Tax  in  Certain  Cases. 

§  1358.  Bond  to  Pay  Tax  When  Person  Comes  into  Possession  or  Enjoy- 
ment. 

§  1359.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  1360.  Transfer  or  Delivery  of  Stocks,  Securities  and  Deposits — Notice. 

§  1361.  Jurisdiction  of  County  Court — Estates  of  Nonresidents — Fees  of 
County. 

§  1362.  Appraisers  and  Appraisement — Contingent  and  Expectant  Estates. 

§  1363.  Notice  of  Appraisement — Witnesses — Report — Compensation. 

§  1364.  Report  of  Special  Appraiser — Proceedings  Thereon — Computation 
of  Tax — Reappraisement. 

§  1365.  Enforcement  of  Unpaid  Taxes. 

§  1366.  Duties  of  Public  Administrator. 

§  1367.  Repealed. 

§  1368.  Report  of  County  Treasurer. 

§  1369.  Retention  of  Funds  by  Treasurer  for  Use  of  County. 

§  1370.  Compromise  of  Taxes  in  Certain  Cases. 

§  1371.  Receipts  for  Payment  of  Tax. 

5  1372.  Payment  to  State  Treasurer. 

§  1373.  Definition  of  Terms. 

§  1374.  Compromise  of  Taxes  Accruing  Prior  to  This  Act. 


CHAPTER  LX. 

WYOMING  STATUTE. 

(Laws  of  190S,  pp.  95-100;  Compiled  Statutes  (1910),  pp.  646-651.) 

§  1375.  Transfers  Subject  to  Tax — Rates — Exemptions. 

§  1376.  Estates  for  Years  or  for  Life  and  Remainders. 

§  1377.  Time  for  Payment — Bond — Interest. 

§  1378.  Collection  of  Tax  by  Executor. 

§  1379.  Sale  of  Property  to  Pay  Tax. 

§  1380.  Payment  to  County  Treasurer — Receipts  and  Vouchers. 


TABLE  OP   CONTENTS. 

§  1381.  Statement  to  County  Treasurer  »f  Taxable  Transfers. 

§  1382.  Refund  of  Tax  When  Debts  Proved  After  Distribution. 

§  1383.  Transfer  of  Stocks  or  Loans  by  Foreign  Executor. 

§  1384.  Refund  of  Tax  Paid  Erroneo>uely. 

§  1385.  Appraisers  and  Appraisement. 

§  1386.  Appraiser  Taking  More  Than  Regular  Fees — Penalty. 

§  1387.  Jurisdiction  of  District  Court. 

§  1388.  Proceedings  to  Enforce  Tax. 

§  1389.  Notice  to  County  Attorney  of  Unpaid  Taxes. 

§  1390.  Statement  to  County  Treasurer  of  Delinquent  Taxpayers. 

§  1391.  Record  of  Estates  to  be  Kept  by  County  Clerk, 

§  1392.  Custody  and  Use  of  Taxes  Collected. 

§  1393.  Payment  to  State  Treasurer — Receipts  and  Reports. 

§  1394.  Copies  of  Receipts  to  be  Furnished — Lien  of  Tax, 


TABLE  OP  CASES  CITED. 


Page 

Abbett,  In  re,  29  Misc.  Rep.  567,  61  N.  Y.  Supp.  1067 89 

Alexander,  Estate  of,  3  Clark,  87 246 

Alfred  University  v.  Hancock,  69  N.  J.  Eq.  470,  46  Atl.  178 194,  195,  199 

Allegheny  County  v.  Stengel,  2.13  Pa.  493,  63  Atl.  58 345 

Allen  v.  McElroy,  130  Ky.  Ill,  113  S.  W.  66 10 

Allen  v.  Philadelphia  SaV.  Fund  Soc.,  Fed.  Cas.  No.  234 236 

Althouse,  Estate  of,  63  App.  Div.  252,  71  N.  Y.  Supp.  445,  affirmed,  168 

N.  Y.  670,  61  N.  E.  1127 75 

Alvany  v.  Powell,  55  N.  C.  51 224 

Amat,  Succession  of,  18  La.  Ann.  403 260 

Anthony,  Estate  of,  40  Misc.  Rep.  497,  82  N.  Y.  Supp.  789 162 

Arnaud's  Heirs  v.  His  Executor,  3  La.  336 66,  259 

Arnett,  Matter  of,  49  Hun,  599,  2  N.  Y.  Supp.  428 65 

Arnett  v.  Reade,  220  U.  S.  311,  55  L.  Ed.  477,  31  Sup.  Ct.  Rep.  425 83 

Arnold,  Estate  of,  114  App.  Div.  244,  99  N.  Y.  Supp.  740 285,  303 

Arnot,  Estate  of,  71  Misc.  Rep.  390,  130  N.  Y.  Supp.  197 199 

Astor  v.  State,  75  N.  J.  Eq.  303,  72  Atl.  78 252 

Astor,  Estate  of,  20  Abb.  N.  C.  405 295 

Astor,  Estate  of,  6  Dem.  Sur.  402 295,  300 

Astor,  Estate  of,  6  Dem.  Sur.  414,  2  N.  Y.  Supp.  630 300,  302,  308 

Attorney  General  v.  Allen,  59  N.  C.  144 349 

Attorney  General  v.  Barney  (Mass.),  97  N.  E.  750 179 

Attorney  General  v.  Pierce,  59  N.  C.  240 339 

Attorney  General  v.  Rafferty,  209  Mass.  321,  95  N.  E.  747 273 

Attorney  General  v.  Sefton,  11  H.  L.  Cas.  257,  269,  271,  275,  276,  11  Eng. 

Reprint,  1331-1333 73 

Attorney  General  v.  Stone  (Mass.),  95  N.  E.  35>5 7,  50,  55,  60,  62,  143,  273 

Avery,  Estate  of,  34  Pa.  204 82 

Ayers  v.  Chicago  Title  etc.  Co.,  187  111.  42,  58  N.  E.  318 125,  134 

Babcock,  Estate  of,  81  App.  Div.  645,  81  N.  Y.  Supp.  1117 127,  131 

Backhouse,  Estate  of,  110  App.  Div.  737,  96  N.  Y.  Supp.  466,  185  N.  Y. 

544,  77  N.  E.  1181 58,  114,  300,  328,  330 

Bailey  v.  Drane,  96  Tenn.  16,  33  S.  W.  573 125,  126 

Bailey  Y.  Henry  (Tenn.),  143  S.  W.  1124 51,  156 

Baker,  Estate  of,  67  Misc.  Rep.  360,  124  N.  Y.  Supp.  827 76,  80,  81,  156 

Baker,  Matter  of,  83  App.  Div.  530,  82  N.  Y.  Supp.  390,  affirmed,  178  N. 

Y.  575,  70  N.  E.  1094 163 

Baker,  Succession  of,  129  La.  74,  55  South.  714 180 

Balch  v.  Attorney  General,  174  Mass.  144,  54  N.  E.  490 188,  19G 

(xlv) 


TABLE  OF   CASES  CITED. 

Page 

Ballots,  Estate  of,  144  N.  Y.  132,  38  N.  E.  1007 194 

Banks  v.  State,  60  Md.  305 345 

Barbey,  Estate  of,  114  N.  Y.  725 81,  92 

Barnum,  Estate  of,  129  App.  Div.  418,  114  N.  Y.  Supp.  33 327,  328 

Barrett  v.  Continental  Realty  Co.,  130  Ky.  109,  114  S.  W.  750 292 

Barringer  v.  Cowan,  55  N.  C.  436 198,  200 

Bartlett,  Matter  of,  4  Misc.  Rep.  380,  23  N.  Y.  Supp.  990 104 

Bartow,  Matter  of,  30  Misc.  Rep.  27,  62  N.  Y.  Supp.  1000 115 

Bass,  Estate  of,  57  Misc.  Rep.  531,  109  N.  Y.  Supp.  1084 146 

Bates,  Estate  of,  7  Ohio  N.  P.  625,  5  Ohio  S.  &  C.  P.  Dec.  547 179,  353 

Baxter  v.  Stevens,  209  Mass.  459,  95  N.  E.  854 217 

Beach,  Estate  of,  154  N.  Y.  242,  48  N.  E.  516 183,  184 

Beals  v.  State,  139  Wis.  544,  121  N.  W.  347 7,  293,  352 

Becker  v.  Nye,  8  Cal.  App.  129,  96  Pac.  333 272,  326,  334,  349 

Becker,  Estate  of,  26  Misc.  Rep.  633,  57  K  Y.  Supp.  940 324 

Becker,  Succession  of,  118  La.  1056,  43  South.  701 53,  172,  173 

Beecher,  Estate  of,  211  Pa.  615,  61  Atl.  252 335 

Beers  v.  Glynn,  211  U.  S.  477,  53  L.  Ed.  290,  29  Sup.  Ct.  Rep.  186 37 

Bell,  Estate  of,  150  Iowa,  725,  130  N.  W.  798 163 

Bentley,  Estate  of,  31  Misc.  Rep.  656,  66  N.  Y.  Supp.  95 236,  239 

Benton,  Estate  of,  234  111.  306,  14  Ann.  Cas.  107,  18  L.  R.  A.,  N.  S.,  458, 

84  N.  E.  1026 149,  156,  157,  158,  160 

Berry,  Estate  of,  23  Misc.  Rep.  230,  51  N.  Y.  Supp.  1132, 314 

Bishop,  Matter  of,  82  App.  Div.  112,  81  N.  Y.  Supp.  474 257 

Bispham,  Estate  of,  6  Pa.  Co.  Rep.  459 139 

Billings  v.  Illinois,  188  U.  S.  97,  47  L.  Ed.  400,  23  Sup.  Ct.  Rep.  272 

31,  33,  80,  134,  145 

Bird,  Estate  of,  2  Con.  376,  11  N.  Y.  Supp.  895 177,  184 

Birdsall,  Estate  of,  22  Misc.  Rep.  180,  49  N.  Y.  Supp.  450.  .153,  159,  176,  183 

Black  v.  State,  113  Wis.  205,  90  Am.  St.  Rep.  853,  89  N.  W.  522 25,  43 

Black,  Estate  of,  1  Con.  477,  5  N.  Y.  Supp.  452 205 

Blackstone,  Estate  of,  69  App.  Div.  127,  74  N.  Y.  Supp.  508,  171  N.  Y. 

682,  64  N.  E.  1118 235,  236,  257,  334 

Blackstone  v.  Miller,  188  U.  S.  189,  47  L.  Ed.  439,  23  Sup.  Ct.  Rep.  277. . 

46,  222,  226,  228,  236,  239,  241,  246,  347 

Blair  v.  Herold,  150  Fed.  199 153 

Bliss,  Estate  of,  6  App.  Div.  192,  39  N.  Y.  Supp.  875 177 

Board  of  Education  of  Ky.  Ann.  Con.  of  M.  E.  Church  v.  Illinois,  203  U. 

S.  553,  8  Ann.  Cas.  157,  51  L.  Ed.  314,  27  Sup.  Ct.  Rep.  171 198 

Board  of  Home  Missions,  In  re,  58  Hun,  116,  11  N.  Y.  Supp.  311 202 

Bogert,  Estate  of,  25  Misc.  Rep.  466,  55  N.  Y.  Supp.  751 125,  126 

Bolton,  Estate  of,  35  Misc.  Rep.  688,  72  N.  Y.  Supp.  430 300,  308,  353 

Booth  v.  Commonwealth,  130  Ky.  88,  113  S.  W.  61 10,  21,  25,  33,  175 

Borup,  Estate  of,  28  Misc.  Rep.  474,  59  N.  Y.  Supp.  1097 162 

Bostwick,  Estate  of,  38  App.  Div.  223,  56  N.  Y.  Supp.  495,  affirmed,  160 

N.  Y.  489,  55  N.  E.  208 161,  165,  166,  167 


TABLE   OF   CASES  CITED. 

Page 

Bradford  v.  Storey,  139  Mass.  104,  75  N.  E.  256 287,  343,  353 

Brandreth,  Estate  of,  58  App.  Div.  575,  69  N.  Y.  Supp.  142 151,  157,  164 

Brandreth,  Estate  of,  28  Misc.  Rep.  468,  59  N.  Y.  Supp.  1092,  169  N.  Y. 

437,  58  L.  E.  A.  148,  62  N.  E.  563 307 

Brez,  Estate  of,  172  N.  Y.  609,  64  N.  E.  958 129,  130,  147 

Bridgeport  Trust  Co.,  Appeal  of,  77  Conn.  657,  60  Atl.  662 302 

Bronson,  Matter  of,  150  N.  Y.  1,  55  Am.  St.  Rep.  632.,  34  L.  R.  A.  238,  44 

N.  E.  707 228,  246,  252 

Brooks,  Estate  of,  6  Dem.  Sur.  165 64 

Brown  v.  Kinney,  128  Fed.  310 125,  313 

Brown  v.  Lawrence,  133  App.  Div.  753,  118  N.  Y.  Supp.  132 277 

Brown,  Estate  of,  5  Pa.  Dist.  Rep.  286 279 

Brown,  Estate  of,  208  Pa.  161,  57  Atl.  360 146 

Bruce,  Estate  of,  59  N.  Y.  1083 328,  332 

Brundage,  Estate  of,  31  App.  Div.  348,  52  N.  Y.  Supp.  362 324,  337 

Buckgaber  v.  Moore,  104  Fed.  947,  31  Civ.  Proc.  Rep.  310,  affirmed,  114 

Fed.  1020,  52  C.  C.  A.  587 227 

Bull,  Estate  of,  153  Cal.  715,  96  Pac.  366 171,  281 

Bullard,  Estate  of,  76  App.  Div.  207,  78  N.  Y.  Supp.  491 159,  161 

Bullen,  Estate  of,  143  Wis.  512,  139  Am.  St.  Rep.  1114,  128  N.  W.  109. .. 

7,  91,  155,  165 

Burden,  Estate  of,  47  Misc.  Rep.  329,  95  N.  Y.  Supp.  972 236,  244,  315 

Burdick,  Matter  of,  112  Cal.  387,  44  Pac.  734 83 

Burgess,  In  re,  146  App.  Div.  348,  130  N.  Y.  Supp.  686 130,  132 

Burgess,  Estate  of  (N.  Y.),  97  N.  E.  591 119 

Burr,  Estate  of,  16  Misc.  Rep.  89,  38  N.  Y.  Supp.  811 236 

Bushnell,  Estate  of,  73  App.  Div.  325,  77  N.  Y.  Supp.  4,  affirmed,  172  N. 

Y.  649,  65  N.  E.  1115 125,  146,  248,  273 

Butler,  Estate  of,  58  Hun,  400,  12  N.  Y.  Supp.  201 181,  183 

Cahen  v.  Brewster,  203  U.  S.  543,  8  Ann.  Cas.  215,  51  L.  Ed.  313,  27  Sup. 

Ct.  Rep.  174 56,  60,  95,  313,  346 

Cager,  Estate  of,  111  N.  Y.  343,  18  N.  E.  866 127 

Callahan  v.  Woodbridge,  171  Mass.  595,  51  N.  E.  176 

93,  186,  227,  235,  244,  252,  287,  318 

Campbell  v.  California,  200  U.  S.  87,  50  L.  Ed.  382,  26  Sup.  Ct.  Rep.  182. 

34,  w 

Campbell,  Estate  of,  143  Cal.  623,  77  Pac.  674 33,  34,  170 

Campbell,  Estate  of,  50  Misc.  Rep.  485,  100  N.  Y.  Supp.  637 330 

Cameron,  Estate  of,  97  App.  Div.  436,  89  N.  Y.  Supp.  977,  affirmed,  181 

N.  Y.  560,  74  N.  E.  1115 329,  350 

Capron,  Estate  of,  10  N.  Y.  Supp.  23 184 

Carpenter  v.  Pennsylvania,  58  U.  S.  (17  How.)  456,  15  L.  Ed.  127 53 

Carter  v.  Eaton,  75  N.  H.  560,  78  Atl.  643 200 

Carter  v.  Story  (N.  H.),  78  Atl.  1072 196,  200,  201 


TABLE   OP   CASES  CITED. 

Page 
Carter  v.  Whitcomb,  74  N.  H.  482,  17  L.  E.  A.,  N.  S.,  733,  69  Atl.  779 

53,  64,  188,  189,  190,  195,  196,  200,  201,  203 

Carver,  Estate  of,  4  Misc.  Rep.  592,  25  N.  Y.  Supp.  991 95 

Catlin  v.  Trustees  of  Trinity  College,  113  N.  Y.  133,  3  L.  E.  A.  206,  20 

N.  E.  864 194,  200 

Chabot,  Estate  of,  44  App.  Div.  340,  60  N.  Y.  Supp.  927,  affirmed,  167  N. 

Y.  280,  60  N.  E.  598 '..- 117,  224 

Chambe  v.  Durfee,  100  Mich.  112,  58  N.  W.  661 24 

Chanler  v.  Kelsey,  205  U.  S.  466,  51  L.  Ed.  882,  27  Sup.  Ct.  Rep.  550 

17,  110,  112 

Chapin  Nat.  Bank  v.  Waite,  150  Mass.  234,  22  N.  E.  915 74 

Chapman,  Matter  of.  133  App.  Div.  337,  117  N.  Y.  Supp.  679 56,  111 

Chesebrough,  Estate  of,  34  Misc.  Rep.  465,  69  N.  Y.  Supp.  848 127 

Chesney,  Estate  of,  1  Cal.  App.  30,  81  Pac.  679 7,  270 

Chisholm  v.  Shields,  67  Ohio  St.  374,  66  N.  E.  93 83,  122 

Chouteau  v.  Allen,  170  Fed.  412,  95  C.  C.  A.  582 145 

Christian,  Estate  of,  18  Wkly.  Notes  Gas.  (Pa.)  88 146 

Church,  Estate  of,  112  App.  Div.  408,  98  N.  Y.  Supp.  535 296 

Church  Charity  Foundation,  Estate  of,  6  Dem.  Sur.  154 204 

Clapp  v.  Mason,  94  U.  S.  589,  24  L.  Ed.  212 145 

Clark,  Estate  of,  37  Wash.  671,  80  Pac.  267 231,  268,  347 

Clarke,  Estate  of,  39  Misc.  Rep.  73,  78  N.  Y.  Supp.  869 125,  127,  132,  146 

Clinch,  Estate  of,  180  N.  Y.  300,  73  N.  E.  36 227,  245 

Cobb,  Estate  of,  14  Misc.  Rep.  409,  36  N.  Y.  Supp.  448 179 

Cogswell,  Estate  of,  4  Dem.  Sur.  248 55 

Coleman,  Estate  of,  159  Pa.  231,  28  Atl.  137 78,  79 

Collateral  Inheritance  Tax,  In  re,  88  Me.  587,  34  Atl.  530 54 

Collins,  Estate  of,  104  App.  Div.  184,  93  N.  Y.  Supp.  342 300 

Commonwealth  v.  Boylo,  2  Del.  Co.  Rep.  335 177 

Commonwealth  v.  Coleman,  52  Pa.  468 334 

Commonwealth  v.  Cumberland  Tel.  &  Tel.  Co.,  146  Ky.  142,  142  S.  W.  392.  286 

Commonwealth  T.  Duffield,  12  Pa.  277 62,  106 

Commonwealth  v.  Eckert,  53  Pa.  102 139 

Commonwealth  v.  Ferguson,  137  Pa.  595,  10  L.  R.  A.  240,  20  Atl.  870 185 

Commonwealth  v.  Freedley,  21  Pa.  33 335 

Commonwealth  v.  Gaulbert,  134  Ky.  157,  119  S.  W.  779. 294,  339,  342 

Commonwealth  v.  Gilkeson,  18  Pa.  Super.  Ct.  516 185 

Commonwealth  v.  Henderson,  172  Pa.  135,  38  Atl.  368 181 

Commonwealth  v.  Mackey,  222  Pa.  613,  72  Atl.  250 185 

Commonwealth  v.  Nancrede,  32  Pa.  389 181 

Commonwealth  v.  Powell,  51  Pa.  438 180 

Commonwealth  v.  Randall,  225  Pa.  197,  73  Atl.  1109 34,  179 

Commonwealth  v.  Smith,  20  Pa.  100 139,  353" 

Commonwealth  v.  Smith,  5  Pa.  142 224,  229 

Commonwealth  v.  Stoll,  132  Ky.  234,  114  S.  W.  279,  116  S.  W.  687 58,  114' 

Commonwealth  v.  Stump,  146  Ky.  132,  142  S.  W.  393 286 


TABLE   OF   CASES  CITED. 

Page 

Commonwealth  v.  Toms,  45  Pa.  408 348 

Commonwealth  v.  Williams,  13  Pa.  29 62,  107 

Commonwealth,  Appeal  of,  34  Pa.  204 210,  354 

Commonwealth,  Appeal  of,  127  Pa.  438,  17  Atl.  1094 125,  126,  141 

Commonwealth,  Appeal  of,  128  Pa.  603,  18  Atl.  386 334,  353 

Commonwealth,  Appeal  of,  129  Pa.  338,  18  Atl.  132 223 

Conklin,  Estate  of,  39  Misc.  Rep.  771,  80  N.  Y.  Supp.  1124 17G 

Connell  v.  Crosby,  210  111.  380,  71  N.  E.  350 

65,  76,  77,  81,  173,  180,  223,  293,  319 

Connelly,  Estate  of,  38  Misc.  Rep.  466,  77  N.  Y.  Supp.  1032 331,  332 

Connoly,  Estate  of,  38  Misc.  Rep.  533,  77  N.  Y.  Supp.  1113 132 

Coogan,  Estate  of,  27  Misc.  Rep.  563,  59  N.  Y.  Supp.  111.  .96,  329,  350,  352 

Cook,  Estate  of,  187  N.  Y.  253,  79  N.  E.  991 181,  214,  219,  274 

Cook,  Estate  of,  194  N.  Y.  400,  87  N.  E.  786 338 

Cook,  Estate  of,  59  Misc.  Rep.  487,  100  N.  Y.  Supp.  628 £07 

Cooksey,  Estate  of,  182  N.  Y.  92,  7,4  N.  E.  880 113 

Cooley,  Estate  of,  186  N.  Y.  220,  10  L.  R.  A.,  N.  S.,  1010,  78  N.  E.  939. .  264 
Cope,  Estate  of,  191  Pa.  1-,  71  Am.  St.  Rep.  749,  45  L.  R.  A.  316,  43  Atl. 

79 22,24,28 

Corbett,  Estate  of,  171  N.  Y.  516,  64  N.  E.  209 176 

Cornell,  Estate  of,  66  App.  Div.  162,  73  N.  Y.  Supp.  32,  order  modified, 

170  N.  Y.  423,  63  N.  E.  445 151,  159,  165,  334 

Corning,  Estate  of,  3  Mis«.  Rep.  160,  23  N.  Y.  Supp.  285 243 

Costello,  Estate  of,  189  N.  Y.  288,  82  N.  E.  139 176,  337 

County  Court  v.  Watson  (Colo.),  118  Pac.  979 308,  309 

Coxe,  Estate  of,  193  Pa.  100,  44  Atl.  256 139 

Craig,  Estate  of,  97  App.  Div.  289,  89  N.  Y.  Supp.  971,  affirmed  in  181 

N.  Y.  551,  74  N.  E.  1116 58,  163 

Crary,  Estate  of,  31  Misc.  Rep.  72,  64  N.  Y.  Supp.  566 158 

Crawford,  Estate  of,  148  Iowa,  60,  126  N.  W.  774 201 

Crenshaw  v.  Moore  (Tenn.),  137  S.  W.  924 82 

Crerar,  Estate  of,  56  App.  Div.  479,  67  N.  Y.  Supp.  795 330 

Crocker  v.  Shaw,  174  Mass.  266,  54  N.  E.  549. 150,  161 

Crouse,  Estate  of,  34  Misc.  Rep.  670,  70  N.  Y.  Supp.  731.. 70,  188,  189,  199 
Cruger,  Matter  of,  54  App.  Div.  405,  66  N.  Y.  Supp.  636,  affirmed,  166 

N.  Y.  602,  59  N.  E.  1121 161,  168 

Crusius,  Succession  of,  19  La.  Ann.  369 261 

Cullen,  Estate  of,  142  Pa.  18,  21  Atl.  781 344 

Culver,  Estate  of,  145  Iowa,  1,  123  N.  W.  743 253 

Culver,  Estate  of,  (Iowa),  133  N.  W.  722 337 

Cumming,  Estate  of,  142  App.  Div.  377,  127  N.  Y.  Supp.  109 273,  347 

Cummings,  Estate  of,  12  Pa.  Co.  Ct.  45 267 

Curry  v.  Spencer,  61  N.  H.  624,  60  Am,  St.  Rep.  337 24 

Curtice,  Estate  of,  111  App.  Div.  230,  97  N.  Y.  Supp.  444,  affirmed, 

185  N.  Y.  543,  77  N.  E.  1184 307 

Curtis,  Matter  of,  142  N.  Y.  219,  36  N.  E.  887 58,  76,  127 


1  TABLE  OF   CASES   CITED. 

Page 

Curtis,  Matter  of,  31  Misc.  Rep.  83,  64  N.  Y.  Stipp.  574 99,  176,  324 

Curtiss,  Estate  of,  1  Con.  471,  7  N.  Y.  Supp.  207 207 

Gushing,  Estate  of,  40  Mis«.  Rep.  505,  82  N.  Y.  Supp.  795 248 

Dalrymple,  Estate  of,  215  Pa.  367,  64  Atl.  554 78,  297 

Daly,  Estate  of,  34  Misc.  Rep.  148,  69  N.  Y.  Supp.  494 330 

Daly,  Estate  of,  100  App.  Div.  373,  91  N.  Y.  Supp.  858,  affirmed,  182 

N.  Y.  524,  74  N.  E.  1116 70,  237,  239,  245 

Damon,  Estate  of,  10  Cal.  App.  542,  102  Pac.  684 37 

Daniell,  Estate  of,  40  Misc.  Rep.  329,  81  N.  Y.  Supp.  1033 103 

Davis  v.  Stevens,  208  Mass.  343,  94  N.  E.  556 194 

Davis  v.  Upson,  230  111.  327,  82  N.  E.  824 225 

Davis,  Estate  of,  91  Hun,  53,  36  N.  Y.  Supp.  822 327 

Davis,  Estate  of,  149  N.  Y.  539,  44  N.  E.  185.  .4,  127,  284,  298,  308,  335,  341 

Davis,  Estate  of,  184  N.  Y.  299,  77  N.  E.  259 183,  184 

De  Borbon,  Estate  of,  211  Pa.  623,  61  Atl.  244 140 

De  Graaf,  Estate  of,  24  Misc..  Rep.  147,  53  N.  Y.  Supp.  591, 75,  81,  176 

Delano,  Estate  of,  176  N.  Y.  486,  64  L.  R.  A.  279,  68  N.  E.  871 

63,107,109,110,114,251 

Demers,  Estate  of,  41  Misc.  Rep.  470,  84  N.  Y.  Supp.  1109 72 

Deutsch,  Estate  of,  107  App.  Div.  192,  95  N.  Y.  Supp.  65 183 

Deyraud,  Succession  of,  9  Rob.  357 53,  259 

Didion,  Estate  of,  54  Misc.  Rep.  201,  105  N.  Y.  Supp.  924 208 

Dimon,  Estate  of,  82  App.  Div.  107,  81  N.  Y.  Supp.  428 317 

Dingman,  Estate  of,  66  App.  Div.  228,  72  N.  Y.  Supp.  694 230,  334,  335 

Disston  v.  McClain,  147  Fed.  114,  77  C.  C.  A.  340 51,  145 

Dixon  v.  Ricketts,  26  Utah,  215,  72  Pac.  947 2,  19,  26,  177 

Dixon  v.  Russell,  78  N.  J.  L.  296,  73  Atl.  51 252,  285 

Dobson,  Estate  of,  132  N.  Y.  Supp.  472 154 

Dodge  County  v.  Burns,  89  Neb.  534,  35  L.  R.  A.,  N.  S.,  877,  131  N.  W. 

922 239 

Doty,  Estate  of,  7  Misc.  Rep.  193,  27  N.  Y.  Supp.  653 103 

Douglas  County  v.  Kountze,  84  Neb.  506,  121  N.  W.  593 

46,  155,  253,  337,  347 

Dow  v.  Abbott,  197  Mass.  283,  84  N.  E.  96 143 

Downs  v.  Harper  Hospital,  101  Mich.  555,  45  Am.  St.  Rep.  427,  25  L.  R. 

A.  602,  60  N.  W.  42 205,  206 

Dows,  Matter  of,  167  N.  Y.  227,  88  Am.  St.  Rep.  508,  52  L.  R.  A.  433,  60 

N.  E.  439 63,  107,  109,  114,  120,  125 

Drew  v.  Tifft,  79  Minn.  175,  79  Am.  St.  Rep.  446,  47  L.  R.  A.  525,  81 

N.  W.  839 24,  29,  75 

Duell  v.  Glynn,  191  N.  Y.  357,  84  N.  E.  282 295 

Dufour,  Succession  of,  10  La.  Ann.  391 260 

Dun,  Estate  of,  39  Misc.  Rep.  616,  80  N.  Y.  Supp.  657 100,  101 

Duryea,  Estate  of,  128  App.  Div.  205,  112  N.  Y.  Supp.  611 181 


TABLE   OF   CASES   CITED.  11 

Page 

Earle,  Estate  of,  74  App.  Div.  458,  77  N.  Y.  Supp.  503 308,  329 

Eastwood  v.  Russell  (N.  J.),  81  Atl.  108 ' 4 

Eaton,  Estate  of,  55  Misc.  Rep.  472,  106  N.  Y.  Supp.  682 68,  329 

Edgerton,  Estate  of,  35  App.  Div.  125,  54  N.  Y.  Supp.  700,  affirmed,  158 

N.  Y.  (571,  52  N.  E.  1124 87,  88,  104,  159,  207 

Edson,  Matter  of,  38  App.  Div.  19,  56  N.  Y.  Supp.  409 68,  72 

Eidman  v.  Martinez,  184  U.  S.  578,  46  L.  Ed.  697,  22  Sup.  Ct.  Rep.  515 

51,  225,  226,  242 

Eidman  v.  Pilghman,  203  U.  S.  580,  51  L.  Ed.  326,  27  Sup.  Ct.  Rep.  779, 

affirming  136  Fed.  141,  69  C.  C.  A.  139 67 

Eldridge,  Estate  of,  29  Misc.  Rep.  734,  62  N.  Y.  Supp.  1026 127 

Embury,  Estate  of,  19  App.  Div.  214,  45  N.  Y.  Supp.  881,  affirmed,  154 

N.  Y.  746,  49  N.  E.  1096 229,  341 

Emmons  r.  Shaw,  171  Mass.  410,  50  N.  E.  1033 62,  64,  107 

English  v.  Crenshaw,  120  Tenn.  531,  127  Am.  St.  Rep.  1025,  17  L.  R.  A., 

N.  S.,  753,  110  S.  W.  210 171,  217 

Enston,  Matter  of,  46  Hun,  506 223,  224,  246 

Eppig,  Estate  of,  63  Misc.  Rep.  613,  118  N.  Y.  Supp.  683 203 

Essex,  Town  of  v.  Brooks,  164  Mass.  79,  41  N.  E.  119 186,  199,  291 

Eury  v.  State,  72  Ohio  St.  448,  74  N.  E.  650 53 

Euston,  Estate  of,  113  N.  Y.  174,  3  L.  R.  A.  464,  21  N.  E.  87 172 

Eyre  v.  Jacob,  14  Gratt.  422,  73  Am.  Dee.  367 12,  13,  20,  33,  65 

Farley,  Estate  of,  15  N.  Y.  St.  Rep.  727 179 

Farrell  v.  United  States,  167  Fed.  639 145 

Fay,  Estate  of,  25  Misc.  Rep.  468,  55  N.  Y.  Supp.  749 100 

Fay,  Estate  of,  47  Misc.  Rep.  532,  76  N.  Y.  Supp.  62 202 

Fay,  Estate  of,  62  Misc.  Rep.  154,  116  N.  Y.  Supp.  423 87,  207 

Fayerweather,  Estate  of,  143  N.  Y.  114,  38  N.  E.  278 172,  194,  354 

Fearing,  Estate  of,  138  App.  Div.  881,  123  N.  Y.  Supp.  396 117,  236 

Fell,  Succession  of,  119  La,  1037,  15  L.  R.  A.,  N.  S.,  267,  44  South.  879 91 

Ferry  v.  Campbell,  110  Iowa,  290,  50  L.  R.  A.  92,  81  N.  Y.  604 

24,  40,  56,  298 

Fidelity  &  Deposit  Co.  v.  Crenshaw,  120  Tenn.  606,  110  S.  W.  1017.  .  .229,  292 
Fidelity  Trust  Co.  v.  MeClain,  113  Fed.  152,  affirmed,  122  Fed.  1020,  57 

C.  C.  A.  679 107 

Field,  Estate  of,  71  Misc.  Rep.  396,  130  N.  Y.  Supp.  195 199,  200 

Fields,  Estate  of,  36  Misc.  Rep.  279,  73  N.  Y.  Supp.  512 107 

Finnen,  Estate  of,  196  Pa.  72,  46  Atl.  269 8,  187 

First  Universalist  Soc.  v.  Bradford,  185  Mass.  310,  70  N.  E.  204 190,  200 

Fisch,  Estate  of,  34  Misc.  Rep.  146,  69  N.  Y.  Supp.  493 182 

Fisher  v.  State,  106  Md.  104,  66  Atl.  661 69,  119,  270 

Fitch,  Estate  of,  160  N.  Y.  87,  54  N.  E.  701 286 

Fitch,  Estate  of,  39  App.  Div.  609,  57  N.  Y.  Supp.  786 229 

Fitzgerald  v.  Rhode  Island  Hospital  Trust  Co.,  24  R.  I.  59,  52  Atl.  814. ..  146 


Ill  TABLE   OF   CASES  CITED. 

Page 
Forster  v.  Gillam,  13  Pa.  340 104 

Forsy th,  In  re,  10  Misc.  Rep.  477,  32  N.  Y.  Supp.  175 53 

Fox  v.  Commonwealth,  16  Gratt.  1 65 

Fox,  Estate  of,  154  Mich.  5,  117  N.  W.  558 4,  26,  27,  41 

Fox,  Estate  of,  159  Mich.  420,  124  N.  W.  60 315 

Fox,  Estate  of,  162  Mich.  531,  127  N.  W.  668 344 

Francis,  Estate  of,  121  App.  Div.  129,  105  N.  Y.  Supp.  643,  affirmed,  189 

N.  Y.  554,  82  N.  E.  1126 199 

Frazer  v.  People,  6  Dem.  Sur.  174,  3  N.  Y.  Supp.  134 296,  343 

Frederickson  v.  Louisiana,  64  U.  S.  (23  How.)  445,  16  L.  Ed.  577 39,  261 

Fretz,  Estate  of,  5  Cof .  Pro.  432 1&8 

Freund,  Estate  of,  143  App.  Div.  335,  128  N.  Y.  Supp.  48,  affirmed,  202 

N.  Y.  556,  95  N.  E.  1129 324 

Friend  v.  Levy,  76  Ohio  St.  26,  80  N.  E.  1036 65 

Frijalo,  Succession  of,  123  La.  71,  48  South.  652 182 

Frothingham  v.  Shaw,  175  Mass.  59,  78  Am.  St.  Eep.  475,  55  N.  E.  623 

229,  237,  243 

Fulton,  Estate  of,  30  Misc.  Eep.  70,  62  N.  Y.  Supp.  995 300,  329 

Gable  v.  Sisters  of  St.  Francis,  227  Pa.  254,  136  Am.  St.  Eep.  879,  75  Atl. 

1087 206 

Galard  v.  Winans,  111  Md.  434,  74  Atl.  626 162 

Galbraith  v.  Commonwealth,  14  Pa.  258 185 

Gallup,  Appeal  of,  76  Conn.  617,  57  Atl.  69& 6,  229,  311 

Gardiner  v.  Carter,  74  N.  H.  507,  69  Atl.  939 253,  256 

Garland,  Estate  of,  88  App.  Div.  380,  84  N.  Y.  Supp.  630 176 

Garth  v.  Switzler,  143  Mo.  287,  60  Am.  St.  Eep.  653,  40  L.  E.  A.  280,  45 

S.  W.  245 21 

Gelsthorpe  v.  Furnell,  20  Mont.  299,  39  L.  E.  A.  170,  51  Pac.  267 

4,  6,  10,  33,  41,  55,  60 

George  G.  Fox  &  Co.  v.  Glynn,  191  Mass.  344,  114  Am.  St.  Eep.  619,  9 

L.  E.  A.,  N.  S.,  1096,  78  N.  E.  89 100 

Germania  Life  Ins.  Co.  v.  Eoss-Lewin,  24  Colo.  43,  65  Am.  St.  Eep.  215, 

51  Pac.  488 49 

Gibbes,  Estate  of,  84  App.  Div.  510,  83  N.  Y.  Supp.  53,  affirmed,  176  N.  Y. 

565,  68  N.  E.  1117 , 245 

Gibbs,  Estate  of,  60  Misc.  Eep.  645,  113  N.  Y.  Supp.  939 90,  243 

Gibson,  Matter  of,  157  N.  Y.  680,  51  N.  E.  1090 127 

Gihon,  Estate  of,  169  N.  Y.  443,  62  N.  E.  561 6,  268,  301,  312,  318,  322,  324 

Gilbertson  v.  Ballard,  125  Iowa,  420,  2  Ann.  Gas.  607,  101  N.  W.  108.  .53,  54 

Gilbertson  v.  McAuley,  117  Iowa,  522,  91  N.  W.  788 177,  178 

Gilbertson  r.  Oliver,  129  Iowa,  568,  4  L.  B.  A.,  N.  S.,  953,  105  N.  W. 

1002 238 

Glendinning,  Matter  of,  68  App.  Div.  125,  74  N.  Y.  Supp.  190,  affirmed, 

171  N.  Y.  684,  64  N.  E.  1121 99 


TABLE   OP   CASES  CITED.  liii 

Page 

Goddard  v.  Goddard,  9  R,  I.  293 269 

Goelet,  Estate  of,  78  N.  Y.  Supp.  47 133 

Gopsill,  Estate  of,  77  N.  J.  Eq.  215,  77  Atl.  793 171 

Gordon,  Estate  of,  2  Cof.  Pro.  138 326,  343 

Gordon,  Estate  of,  186  N.  Y.  471,  10  L.  R.  A.,  N.  S.,  1089,  79  N.  E.  722 

52,  89 

Gould,  Matter  of,  156  N.  Y.  423,  51  N.  E.  287 71,  87,  103,  219,  31S 

Graves,  Estate  of,  242  111.  212,  89  N.  E.  978 211,  342 

Graves,  Estate  of,  34  Misc.  Rep.  677,  70  N.  Y.  Supp.  727,  order  reversed, 

66  App.  Div.  267,  72  N.  Y.  Supp.  815 64,  186,  189,  191,  192,  193,  204 

Graves,  Estate  of,  52  Misc.  Rep.  433,  103  N.  Y.  Supp.  571 93,  157 

Green,  Estate  of,  153  N.  Y.  223,  47  N.  E.  292 155,  161,  164 

Green,  Estate  of,  68  Misc.  Rep.  1,  124  N.  Y.  Supp.  863,  154  App.  Div.  232, 

129  N.  Y.  Supp.  54 86 

Greenwood  v.  Holbrook,  111  N.  Y.  466,  18  N.  E.  711 214 

Greves  v.  Shaw,  173  Mass.  205,  53  N.  E.  272 69,  249,  252 

Grosvenor,  Estate  of,  124  App.  Div.  331,  108  N.  Y.  Supp.  926 234,  315 

Hackett,  Estate  of,  14  Misc.  Rep.  282,  35  N.  Y.  Supp.  1051 272,  326 

Hagerty  v.  State,  55  Ohio  St.  613,  45  N.  E.  1046 33,  41,  153 

Haggerty,  Estate  of,  128  App.  Div.  479,  112  N.  Y.  Supp.  1017,  affirmed, 

194  N.  Y.  550,  87  N.  E.  1120 58 

Hale,  Estate  of,  161  Pa.  181,  28  Atl.  1071 79 

Hall,  Estate  of,  54  Hun,  637,  7  N.  Y.  Supp.  595 350 

Hall,  Estate  of,  88  Hun,  68,  34  N.  Y.  Supp.  616 176 

Hall,  Estate  of,  £6  Misc.  Rep.  618,  73  N.  Y.  Supp.  1124 123 

Hallock,  Estate  of,  42  Misc.  Rep.  473,  87  N.  Y.  Supp.  255 177 

Hamilton,  Estate  of,  148  N.  Y.  310,  42  N.  E.  717 186 

Hamilton,  Estate  of,  41  Misc.  Rep.  268,  84  N.  Y.  Supp.  44 351 

Handley,  Estate  of,  181  Pa.  339,  37  Atl.  587 78,  79 

Harbeck,  Estate  of,  161  N.  Y.  211,  56  N.  E.  850 51,  159,  172 

Harbock,  Will  of,  161  N.  Y.  211,  55  N.  E.  850 62,  106 

Harder,  Estate  of,  124  App.  Div.  77,  108  N.  Y.  Supp.  154 184 

Harrison  v.  Johnston,  109  Tenn.  245,  70  S.  W.  414 143,  292,  301,  345 

Hart  v.  Smith,  159  Ind.  182,  95  Am.  St.  Rep.  280,  58  L.  R.  A.  949,  64 

N.  E.  661 100 

Hartman,  Estate  of,  70  N.  J.  Eq.  664,  62  Atl.  560 53,  230,  238,  308- 

Hathaway,  Estate  of,  27  Misc.  Rep.  474,  59  N.  Y.  Supp.  166 285,  297 

Havemeyer,  Estate  of,  32  Misc.  Rep.  416,  66  N.  Y.  Supp.  722 94,  306,  313 

Hawley,  Estate  of,  214  Pa.  525,  6  Ann.  Gas.  572,  63  Atl.  1021 210 

Hearnes  v.  Waterbury  Hospital,  66  Conn.  98,  31  L.  R.  A.  224,  33  Atl. 

595 205 

Heberton  v.  McLain,  135  Fed.  226 145 

Hellman  v.  United  States,  15  Blatchf.  13,  Fed.  Cas.  No.  6341 341 

Hellman,  Estate  of,  77  App.  Div.  355,  79  N.  Y.  Supp.  201 100 


liV  TABLE  OP   CASES  CITED. 

Page 

Hellman,  Estate  of,  174  N.  Y.  254,  95  Am.  St.  Rep.  582,  66  N.  E.  809 100 

Hendricks,  Matter  of,  1  Con.  Sur.  301,  3  N.  Y.  Supp.  281 162 

Herold  v.  Kahn,  159  Fed.  608,  86  C.  C.  A.  478 123,  145,  352 

Herr,  Estate  of,  55  Hun,  167,  7  N.  Y.  Supp.  852 20 1 

Herr,  Will  of,  57  Hun,  591,  10  N.  Y.  Supp.  680 207 

Herriott  v.  Bacon,  110  Iowa,  342,  81  N.  W.  701 ..177,  178 

Herriott  Y.  Potter,  115  Iowa,  648,  89  N.  W.  91 54,  56 

Hertz  v.  Woodman,  218  U.  S.  205,  54  L.  Ed.  1001,  30  Sup.  Ct.  Rep.  621. .  67 

Herzo,  Estate  of,  2  Cof .  Pro.  165 208 

Hess,  Estate  of,  110  App.  Div.  476,  96  N.  Y.  Supp.  990,  affirmed,  187  N.  Y. 

554,  SON.  E.  1111 152,  154,  161 

Hickok,  Estate  of,  78  Vt.  259,  6  Ann.  Gas.  578,  62  Atl.  724 26,  171,  194 

Higgins,  Estate  of,  55  Misc.  Rep.  175,  106  N.  Y.  Supp.  465 193,  199,  206 

High  v.  Coyne,  93  Fed.  450 41 

Hillman,  Estate  of,  116  App.  Div.  186,  101  N.  Y.  Supp.  640 245 

Hinds  v.  Wilcox,  22  Mont.  4,  55  Pac.  355 68,  75,  180 

Hitchins,  Estate  of,  43  Misc.  Rep.  485,  89  N.  Y.  472,  affirmed,  101  App. 

Div.  612,  92  N.  Y.  Supp.  112S,  181  N.  Y.  553,  74,  N.  E.  1118 58 

Hite,  Estate  of,  159  Cal.  392,  113  Pac.  1072 5,  72,  301,  311,  325 

Hoffman,  Matter  of,  143  N.  Y.  327,  38  N.  E.  311 127,  137,  145,  176,  269 

Hood,  Estate  of,  21  Pa.  106 222 

Hooper  v.  Brafford,  178  Mass.  95,  59  N.  E..  678 74,  308,  317 

Hooper  v.  Shaw,  176  Mass.  190,  57  N.  E.  361 ...68,  185,  205,  324 

Hoople,  Estate  of,  179  N.  Y.  308,  72  N.  E.  229 '. 351 

Hopkins,  Appeal  of,  77  Conn.  644,  60  Atl.  657 230,  285,  295,  302,  317,  347 

Hopkins,  In  re,  6  Dem.  Sur.  1 127 

Horn,  Estate  of,  39  Misc.  Rep.  133,  78  N.  Y.  Supp.  979 90,  239 

Hosack,  Estate  of,  39  Misc.  Rep.  130,  78  N.  Y.  Supp.  983 132 

House  Bill  No.  122,  In  re,  23  Colo.  492,  48  Pac.  535 4,  25 

Howard,  Estate  of,  54  Hun,  305,  7  N.  Y.  Supp.  594 350 

Howard,  Estate  of,  80  Vt.  489,  68  Atl.  513 55,  244 

Howard,  Matter  of,  5  Dem.  Sur.  483 95 

Howe,  Estate  of,  86  App.  Div.  236,  83  N.  Y.  Supp.  825,  affirmed,  176 

N.  Y.  570,  68  N.  E.  1118 119,  132,  177 

Howe  v.  Howe,  179  Mass.  546,  55  L.  R.  A.  626,  61  N.  E.  225 

53,  68,  123,  143,  144,  145,  342 

Howell,  Estate  of,  147  Pa.  164,  23  Atl.  403 177 

Howell,  Estate  of,  34  Misc.  Rep.  40,  69  N.  Y.  Supp.  505 1S8,  189 

Hoyt  v.  Hancock,  65  N.  J.  L.  688,  55  Atl.  1004 107,  119 

Hoyt,  In  re,  37  Misc.  Rep.  720,  76  N.  Y.  Supp.  504 121,  130,  131,  146 

Hubbard,  Estate  of,  21  Misc.  Rep.  566,  48  N.  Y.  Supp.  869 287 

Huber,  Estate  of,  86  App.  Div.  458,  83  N.  Y.  Supp.  769 130,  131,  219 

Hughes  v.  Golden,  44  Misc.  Rep.  128,  89  N.  Y.  Supp.  765 269 

Hulett,  Estate  of,  121  Iowa,  423,  96  N.  W  952 71,  180 

Hull,  Estate  of,  111  App.  Div.  322,  97  N.  Y.  Supp.  701,  affirmed,  186 

N.  Y.  586,  79  N.  E.  1107 118,  226,  334 


TABLE  OP   CASES   CITED.  Iv 

Page 
Hulse,  In  re,  15  N.  Y.  Supp.  770 154 

Humphreys  v.  State,  70  Ohio  St.  67,  101  Am.  St.  Rep.  88S,  1  Ann.  Cas. 

233,  65  L.  B.  A.  776,  70  N.  E.  967 37,  43,  170,  194,  198,  335,  336 

Hunter,  Estate  of,  11  N.  Y.  St.  Rep.  704 204,  269,  272 

Huntington,  Estate  of,  168  N.  Y.  399,  61  N.  E.  643 189 

Hurcomb,  Estate  of,  36  Misc.  Rep.  755,  74  N.  Y.  Supp.  475 93 

Hurst  v.  Cookman,  1  Lane.  Law  Rev.  60 208 

Hutchinson,  Matter  of,  106  App.  Div.  487,  94  N.  Y.  Supp.  354 122,  312 

Irish,  Estate  of,  28  Misc.  Rep.  647,  60  N.  Y.  Supp.  30 5,  321 

Isham  v.  New  York  Assn.  for  Poor,  177  N.  Y.  218,  69  N.  E.  367 108 

Jackson  v.  Phillips,  96  Mass.  (14  Allen)  539 191 

Jackson  v.  Tailer,  41  Misc.  Rep.  36,  83  N.  Y.  Supp.  567,  affirmed,  96  App. 

Div.  625,  88  N.  Y.  Supp.  1104 267,  272 

James  v.  American  Surety  Co.,  133  Ky.  313,  117  S.  W.  406 62 

James,  Appeal  of,  2  Del.  Co.  Rep.  164 139 

James,  Estate  of,  6  Misc.  Rep.  206,  27  N.  Y.  Supp.  288 194 

James,  Matter  of,  144  N.  Y.  6,  38  N.  E.  961 82,  180,  223,  224,  234,  257 

Jarvis,  Estate  of,  149  N.  Y.  539,  44  N.  E.  185 54 

Jensen  v.  Maine  Eye  &  Ear  Infirmary,  107  Me.  408,  78  Atl.  898 206 

Johnson  v.  Dunbar,  28  La.  Ann.  271 269 

Johnson,  Estate  of,  139  Cal.  534,  96  Am.  St.  Rep.  161,  93  Pac.  425 37,  38 

Johnson,  Estate  of,  37  Misc.  Rep.  542,  75  N.  Y.  Supp.  1046 331 

Johnson,  In  re,  6  Dem.  Sur.  146 146 

Jones,  Estate  of,  73  N.  J.  Eq.  353,  67  Atl.  1035,  74  N.  J.  Eq.  447,  70  Atl. 

1101 195 

Jones,  Estate  of,  172  N.  Y.  575,  60  L.  R.  A.  476,  65  N.  E.  570 75,  94,  307 

Jones,  Estate  of,  50  Hun,  603,  22  Abb.  N.  C.  50,  2  N.  Y.  Supp.  671 193 

Jones,  Estate  of,  54  Misc.  Rep.  202,  105  N.  Y.  Supp.  932 65,  296 

Jones,  Estate  of,  65  Misc.  Rep.  121,  120  N.  Y.  Supp.  862 161 

Jones,  Estate  of,  69  App.  Div.  237,  74  N.  Y.  Supp.  702 101 

Jones,  In  re,  28  Misc.  Rep.  356,  59  N.  Y.  Supp.  983 122 

Joyslin,  Estate  of,  76  Vt.  88,  56  Atl.  281 238 

Kavanagh,  Estate  of,  6  N.  Y.  Supp.  669 189,  200 

Keahon,  Estate  of,  60  Misc.  Rep.  508,  113  N.  Y.  Supp.  926 101 

Keech,  Estate  of,  57  Hun,  588,  11  N.  Y.  Supp.  265 203 

Keenan,  Estate  of,  1  Con.  266,  5  N.  Y.  Supp.  200 285,  297 

Keeney,  Estate  of,  194  N.  Y.  281,  87  N.  E.  428 7,  27,  149,  151,  155,  161 

Keith,  Estate  of,  1  Con.  370,  5  N.  Y.  Supp.  201 209 

Kelly,  Estate  of,  29  Misc.  Rep.  169,  60  N.  Y.  Supp.  1005 203,  308,  329 

Kene,  Estate  of,  8  Misc.  Rep.  102,  29  N.  Y.  Supp.  1078 314 

Kennedy,  Estate  of,  157  Cal.  517,  108  Pac.  280 6,  87,  301,  311 

Kennedy,  Estate  of,  113  App.  Div.  4,  99  N.  Y.  Supp.  72 302 


Ivi  TABLE   OF   CASES  CITED. 

Page 

Kennedy,  Estate  of,  20  Misc.  Rep.  531,  46  N.  Y.  Supp.  906 322 

Kerr  v.  Goldsborough,  150  Fed.  289,  80  C.  C.  A.  177 181 

Kerr,  Estate  of,  159  Pa.  512,  2S  All.  354 51,  171,  211 

Kidd,  Estate  of,  188  N.  Y.  274,  80  N.  E.  924 163 

Kimberly,  Estate  of,  27  App.  Div.  470,  50  N.  Y.  Supp.  586 51,  206 

King  v.  Eidman,  128  Fed.  815 180 

King,  Estate  of,  56  App.  Div.  617,  67  N.  Y.  Supp.  766,  affirmed,  172  N.  Y. 

616,  64  N.  E.  1122 313 

King,  Estate  of,  71  App.  Div.  581,  76  N.  Y.  Supp.  220,  affirmed,  172  N.  Y. 

616,  64  N.  E.  1122 234,  315 

King,  Estate  of,  30  Misc.  Rep.  575,  63  N.  Y.  Supp.  1100,  order  affirmed, 

56  App.  Div.  617,  67  N.  Y.  Supp.  766 102 

Kingman,  Estate  of,  220  111.  563,  5  Ann.  Cas.  234,  77  N.  E.  135 136 

Kingsbury  v.  Bazeley,  75  N.  H.  13,  139  Am.  St.  Rep.  664,  20  Ann.  Cas. 

1355,  70  Atl.  916 227,  228,  267,  272,  348 

Kingsbury  v.  Chapin,  196  Mass.  533,  13  Ann.  Cas.  738,  82-  N.  E.  700 

70,  232,  250,  254,  303 

Kinney  r.  Stevens,  207  Mass.  368,  Ann.  Cas.  1912A,  902,  35  L.  R.  A., 

N.  8.,  784,  93  N.  E.  586 69,  242,  243 

Kintzing  v.  Hutchinson,  Fed.  Cas.  No.  7834 238,  246 

Kissell,  Estate  of,  65  Misc.  Rep.  443,  121  N.  Y.  Supp.  1088,  affirmed,  142 

App.  Div.  934,  127  N.  Y.  Supp.  1127 116 

Kitching  v.  Shear,  26  Misc.  Rep.  436,  57  N.  Y.  Supp.  464 278 

Kline,  Estate  of,  65  Misc.  Rep.  446,  121  N.  Y.  Supp.  1090 92 

Knoedler,  Estate  of,  140  N.  Y.  377,  35  N.  E.  601 70,  89 

Knox  v.  Emerson,  123  Tenn.  509,  131  S.  W.  972 1,  292,  345 

Knowlton  v.  Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20  Sup.  Ct.  Rep.  747 

2,  7,  15,  17,  21,  24,  44,  56,  175,  268,  283 

Kochersperger  v.  Drake,  167  111.  122,  41  L.  R.  A.  446,  47  N.  E.  321 

5,  25,  44,  225 

Kohn,  Succession  of,  115  La.  71,  38  South.  989 94,  171,  172,  346 

Kohny  v.  Dunbar  (Idaho),  121  Pac.  544 84 

Kramer  v.  Old,  119  N.  C.  1,  56  Am.  St.  Rep.  650,  25  S.  E.  813 100 

Kucielski,  Estate  of,  144  App.  Div.  100,  128  N.  Y.  Supp.  768 193 

Lacy  T.  State  Treasurer  (Iowa),  121  N.  W.  179 5,  55,  56,  58 

Lamb's  Estate  v.  Morrow,  140  Iowa,  89,  18  L.  R.  A.,  N.  S.,  226,  117 

N.  W.  1118 154,  162 

Lamberton,  Estate  of,  40  Pa.  Super.  Ct.  548 78 

Land  Trust  etc.  Co.  v.  McCoach,  129  Fed.  901,  64  C.  C.  A.  333 145 

Lander,  Estate  of,  6  Cal.  App.  744,  93  Pac.  202 66,  272 

Landis,  Estate  of,  66  N.  J.  Eq.  291,  56  Atl.  1039 192,  199,  323 

Lane,  Estate  of,  39  Misc.  Rep.  522,  80  N.  Y.  Supp.  381 183 

Langdon,  Estate  of,  11  App.  Div.  220,  43  N.  Y.  Supp.  419,  affirmed,  153 

N.  Y.  6,  46  N.  E.  1034 58,  59,  127 


TABLE  OF  CASES  CITED.  Ivii 

Page 

Lange,  Estate  of,  55  N.  T.  Supp.  750 126,  126 

Lansing,  Matter  of,  182  N.  Y.  238,  74  N.  E.  882 53,  111,  113,  114 

Lansing,  Estate  of,  31  Misc.  Rep.  148,  64  N.  Y.  Supp.  1125 310 

Lauman,  Appeal  of,  131  Pa.  346,  18  Atl.  900 72 

Lawrence,  Estate  of,  96  App.  Div.  29,  88  N.  Y.  Supp.  1028 32(> 

Lea,  Estate  of,  194  Pa.  524,  45  Atl.  337 69,  122 

Leavell  v.  Arnold,  131  Ky.  426,  115  8.  W.  232 9,  19S 

Leavitt,  Estate  of,  4  N.  Y.  Supp.  179. . : 246 

LeBrun,  Estate  of,  39  Misc.  Rep.  516,  80  N.  Y.  Supp.  486 127 

Lefever,  In  re,  5  Dem.  Sur.  (N.  Y.)  184 127 

Lennon,  Estate  of,  152  Cal.  327,  125  Am.  St.  Rep.  58,  14  Ann.  Gas.  1024, 

92  Pac.  870 191 

Lenox,  Estate  of,  9  N.  Y.  Supp.  895 199,  204,  205 

Leopold,  Estate  of,  35  Misc.  Rep.  369,  71  N.  Y.  Supp.  1032- 236 

Levy,  Succession  of,  115  La.  377,  5  Ann.  Gas.  871,  8  L.  R.  A.,  N.  S.,  1180, 

39  South.  37,  affirmed,  Cahen  v.  Brewster,  203  U.  S.  543,  8  Ann.  Gas. 

215,  51  L.  Ed.  313,  27  Sup.  Ct.  Rep.  174 55,  95,  313,  346 

Lewis,  Estate  of,  203  Pa.  211,  52  Atl.  205 240,  244 

Libolt,  Estate  of,  102  App.  Div.  29,  92  N..Y.  Supp.  175 86 

Lind,  Estate  of,  132  App.  Div.  321,  117  N.  Y.  Supp.  49,  affirmed,  196  N. 

Y.  570,  90  N.  E.  1161 ! 130,  284 

Lines,  Estate  of,  155  Pa.  378,  26  Atl.  723 151,  230,  303,  320,  353 

Linkletter,  Estate  of,  134  App.  Div.  309,  118  N.  Y.  Supp.  878 5 

Liss,  Estate  of,  39  Misc.  Rep.  123,  78  N.  Y.  Supp.  969 88,  207,  323 

Livingstone,  Estate  of,  1  App.  Div.  568,  37  N.  Y.  Supp.  463 314 

Long,  Estate  of,  22  Pa.  Super.  Ct.  370 208 

Lord,  Estate  of,  186  N.  Y.  549,  79  N.  E.  1110,  affirmed,  Lord  v.  Glynn, 

211  U.  S.  477,  53  L.  Ed.  290,  29  Sup.  Ct.  Rep.  186 26,  117,  227 

Lorillard  v.  People,  6  Dem.  Sur.  (N.  Y/)  268 223 

Lotzgesell,  Estate  of,  62  Wash.  352,  113  Pae.  1105 269 

Lowndes,  Estate  of,  60  Misc.  Rep.  506,  113  N.  Y.  Supp.  1114 119 

Lowry,  Estate  of,  89  App.  Div.  226,  85  N.  Y.  Supp.  924 332 

Ludlow,  Estate  of,  4  Misc.  Rep.  594,  25  N.  Y.  Supp.  989 312 

Lynch  v.  Union  Trust  Co.,  164  Fed.  161,  90  C.  C.  A.  147 51 

Lynn,  Matter  of,  34  Misc.  Rep.  681,  70  N.  Y.  Supp.  730 115,  127 

Lyon,  Estate  of,  144  App.  Div.  104,  128  N.  Y.  Supp.  1004 19G 

McAvoy,  Estate  of,  112  App.  Div.  377,  98  N.  Y.  Supp.  437 87,  103,  208 

McCarthy,  Estate  of,  5  Misc.  Rep.  276,  25  N.  Y.  Supp.  987 345 

McCoach  v.  Bamberger,  161  Fed.  90,  88  C.  C.  A.  254 67 

McCoach  v.  Philadelphia  Trust  etc.  Co.,  205  U.  S.  539,  27  Sup.  Ct.  Rep. 

793,  51  L.  Ed.  921,  affirming  142  Fed.  120,  73  C.  C.  A.  610 67 

McCormick,  Estate  of,  71  Misc.  Rep.  96,  127  N.  Y.  Supp.  493 192,  202 

McCormick,  Estate  of,  15  Pa.  Co.  Ct.  621 154 


Iviii  TABLE  OP   CASES  CITED. 

Page 
McCoskey,  Estate  of,  6  Dem.  Sur.  (N.  Y.)  438,  22  Abb.  N.  C.  20,  1  N.  Y. 

Supp.  782 194 

McCoy  v.  Gill,  156  Fed.  985 218 

McCurdy  v.  McCurdy,  197  Mass.  248,  14  Ann.  Cas.  859,  16  L.  E.  A.,  N.  S., 

329,  83  N.  E.  881 53,  76,  77,  229,  232,  243,  313 

McDonald  v.  Massachusetts  General  Hospital,  120  Mass.  432,  21  Am.  St. 

Kep.  529 20o 

McDowell  v.  Addams,  45  Pa,  430 179 

McEwan,  Estate  of,  51  Misc.  Rep.  455,  101  N.  Y.  Supp.  733 233 

McGarvey,  In  re,  6  Dem.  Sur.  145 180 

McGhee,  Estate  of,  105  Iowa,  9,  74  N.  W.  695 3-03,  309,  313 

McKennan,  Estate  of,  25  S.  D.  369,  126  N.  W.  611,  130  N.  W.  33 

23,  27,  44,  170,  186,  270,  281 

McLain  v.  Pennsylvania  Co.,  108  Fed.  618,  47  C.  C.  A.  529 71 

McMahon  v.  Jones,  14  Abb.  N.  C.  406 272 

McMahon,  Estate  of,  28  Misc.  Rep.  697,  60  N.  Y.  Supp.  64 146 

McPherson,  Estate  of,  104  N.  Y.  306,  58  Am.  Rep.  502,  10  N.  E.  685 

18,  21,  23,  26,  33,  293,  299,  300,  340 

Macky,  Estate  of,  46  Colo.  79,  23  L.  R.  A.,  N.  S.,  1207,  102  Pac.  1075 

3,  5,  6,  186 

Magnes,  Estate  of,  32  Colo.  527,  77  Pac.  853 22,  26,  27,  33,  40,  44 

Magoun  v.  Illinois  Trust  etc.  Bank,  170  U.  S.  283,  42  L.  Ed.  103-7,  18  Sup. 

Ct.  Hep.  594 21,  26,  30,  33,  35,  56,  225 

Mahlstedt,  Estate  of,  67  App.  Div.  176,  73  N.  Y.  Supp.  818 158 

Mahoney,  Estate  of,  133  Cal.  180,  85  Am.  St.  Rep.  155,  65  Pac.  389 38 

Majer  v.  Grima,  49  U.  S.  (8  How.)  490,  12  L.  Ed.  1168,  affirming  12  Rob. 

584 40 

Majot,  Estate  of,  199  N.  Y.  29,  92  N.  E.  402 85 

Mandel  v.  Fidelity  Trust  Co.,  128  Ky.  239,  107  S.  W.  775 279 

Mann  v.  Carter,  74  N.  H.  345,  15  L.  R.  A.,  N.  S.,  150,  68  Atl.  130.  .191,  237,  238 

Manning,  Estate  of,  169  N.  Y.  449,  62  N.  E.  565 302,  304,  335 

Maresi,  Estate  of,  74  App.  Div.  76,  77  N.  Y.  Supp.  76 314,  319,  324 

Marks,  Estate  of,  40  Misc.  Rep.  507,  82  N.  Y.  Supp.  803 319 

Marsal,  Succession  of,  118  La.  212,  42  South.  778 85 

Martin,  Estate  of,  153  Cal.  225,  94  Pac.  1053 66 

Mason  v.  Sargent,  104  U.  S.  689,  26  L.  Ed.  894 145 

Mason,  Estate  of,  69  Misc.  Rep.  280,  126  N.  Y.  Supp.  998 282 

Masury,  Estate  of,  28  App.  Div.  580,  51  N.  Y.  Supp.  331,  affirmed,  159  N. 

Y.  532,  53  N.  E.  1127 166 

Mather,  Estate  of,  90  App.  Div.  382,  85  N.  Y.  Supp.  657,  affirmed,  179  N. 

Y.  526,  71  N.  E.  1134 113,  352 

Maverick,  Estate  of,  135  App.  Div.  44,  119  N.  Y.  Supp.  914,  affirmed,  198 

N.  Y.  618,  92  N.  E.  1084 88 

May  v.  Slack,  Fed.  Cas.  No.  9336 341 

May,  Succession  of,  120  La.  692,  45  South.  551 313 


TABLE  OF   CASES  CITED.  lix 

Page 

Meadon,  Estate  of,  81  Vt.  4W,  7O  Atl.  1064 348 

Mellon,  Appeal  of,  114  Pa,  564,  8  Atl.  183 139,  279,  341 

Memphis  Trust  Co.  v.  Speed,  114  Tenn.  677,  88  S.  W.  321 82,  180,  316 

Mergentime,  Estate  of,  129  App.  Div.  367,  113  N.  Y.  Supp.  948,  affirmed, 

195  N.  Y.  572,  88  N.  E.  1125 172,  199 

Merriam,  Estate  of,  141  N.  Y.  479,  36  N.  E.  505 98,  185,  186,  226,  243,  256 

Merrifield's  Estate  v.  People,  212  111.  400,  72  N.  E.  446 157 

Miller  v.  Commonwealth,  111  Pa.  321,  2  Atl.  492 78,  79,  353 

Miller  v.  Commonwealth,  27  Gratt.  110 71,  187 

Miller  v.  Howey  (Estate  of  Wood),  91  App.  Div.  3,  86  N.  Y.  Supp.  269. .  352 

Miller  v.  McLaughlin,  141  Mich.  425,  104  N.  W.  777 49,  58 

Miller  v.  Tracy,  93  App.  Div.  27,  86  N.  Y.  Supp.  1024 127,  335 

Miller  v.  Wolfe,  115  Tenn.  234,  89  S.  W.  398 344 

Miller,  Estate  of,  110  N.  Y.  216,  18  N.  E.  139 181,  32(5 

Miller,  Estate  of,  77  App.  Div.  473,  78  N.  Y.  Supp.  930 153,  340 

Miller,  Estate  of,  182  Pa.  157.  37  Atl.  1000 354 

Miller,  Estate  of,  5  Pa.  Co.  Ct.  522 72 

Miller,  In  re,  5  Dem.  Sur.  132,  45  Hun,  244 179,  189 

Milliken,  Estate  of,  206  Pa.  149,  55  Atl.  853 226 

Mills,  Estate  of,  86  App.  Div.  555,  67  N".  Y.  Supp.  956,  affirmed,  87  App. 

Div.  632,  84  N.  Y.  Supp.  1135,  177  N.  Y.  562,  69  N.  E.  1127 76 

Millward,  Estate  of,  6  Misc.  Bep.  425,  27  N.  Y.  Supp.  286 121,  312 

Milne,  Estate  of,  76  Hun,  328,  27  N.  Y.  Supp.  727 354 

Minns  v.  Billings,  183  Mass.  126,  97  Am.  St.  Rep.  420,  5  L.  E.  A.,  N.  S., 

686,  66  N.  E.  593 208 

Minot  v.  Stevens,  207  Mass.  588,  33  L.  E.  A.,  N.  S.,  236,  93  N.  E.  973 

63,  107,  111 

Minot  v.  Winthrop,  162  Mass.  113,  26  L.  E.  A.  259,  38  N.  E.  512 

7,  12,  13,  33,  40,  42,  124,  150,  189,  194 

Mock,  Estate  of,  113  App.  Div.  913,  100  N.  Y.  Supp.  1130 176 

Moench,  Estate  of,  39  Misc.  Eep.  480,  80  N.  Y.  Supp.  222 343 

Moffitt  v.  Kelly,  218  U.  S.  400,  54  L.  Ed.  1086,  31  Sup.  Ct.  Eep.  79. . .  .84,  112 
Moffitt,  Estate  of,  153  Gal.  359,  20  L.  B.  A.,  N.  S.,  207,  95  Pac.  653,  1025 .  83 

Moneypenny,  Estate  of,  181  Pa.  309,  37  Atl.  589 309,  310,  326 

Montague  v.  State,  54  Md.  481 174,  270 

Montgomery  v.  Gilbertson,  134  Iowa,  291,  10  L.  E.  A.,  N.  S.,  986,  111  N. 

W.  964 65,  273 

Moody  v.  Shaw,  173  Mass.  375,  53  N.  E.  891 252,  254 

Moore  v.  Buckgaber,  184  U.  S.  593,  46  L.  Ed.  705,  22  Sup.  Ct.  Eep.  521. .  227 

Moore,  Estate  of,  90  Hun,  162,  35  N.  Y.  Supp.  782 65,  184,  354 

Moore,  Estate  of,  66  Misc.  Eep.  116,  122  N.  Y.  Supp.  828,  affirmed,  143 

App.  Div.  910,  128  N.  Y.  Supp.  1135 192,  206 

Morgan  v.  Cowie,  49  App.  Div.  612,  63  N.  Y.  Supp.  608 308,  330,  332 

Morgan  v.  Warner,  45  App.  Div.  424,  60  N.  Y.  Supp.  693,  affirmed,  162  N. 

Y.  612,  57  N.  E.  1118 104,  304 


IX  TABLE   OF   CASES  CTTED. 

Page 

Morgan,  Estate  of,  150  N.  Y.  35,  44  N.  E.  1126 226,  244,  245 

Morgan,  Estate  of,  36  Misc.  Rep.  753,  74  N.  Y.  Supp.  478 312 

Morris,  Estate  of,  138  N.  C.  259,  50  S.  E.  682 18,  75,  295 

Morrow  v.  Depper  (Iowa),  133  N.  W.  729 54 

Morrow  v.  Durant,  140  Iowa,  437,  118  N.  W.  781.  .6,  6-0,  88,  178,  219,  312,  337 
Morrow  v.  Smith,  145  Iowa,  514,  Ann.  Cas.  1912A,  1183,  124  N.  W.  316. .  193 

Moses,  Estate  of,  138  App.  Div.  525,  123  N.  Y.  Supp.  443,  447 

191,  199,  200,  202,  209 

Moulton,  Estate  of,  11  Misc.  Rep.  694,  33  N.  Y.  Supp.  578 183 

Mount  Hermon  Boys'  School  v.  Gill,  145  Mass,  139,  13  N.  E.  354 199 

Murdock  v.  Ward,  178  U.  S.  139,  44  L.  Ed.  1009,  20  Sup.  Ct.  Rep.  775 96 

Murray,  Estate  of,  96  App.  Div.  128,  89  N.  Y.  Supp.  71 177 

Murtaugh  v.  St.  Louis,  44  Mo.  479 205 

Myers,  Estate  of,  129  N.  Y.  Supp.  194 236 

Nashua  Sav.  Bank  v.  Abbott,  181  Mass.  531,  92  Am.  St.  Rep.  430,  63  N. 

E.  1058 98 

National  Safe  Deposit  Co.  v.  Stead,  250  111.  584,  95  N.  E.  973 4,  48,  342 

Naylor,  Estate  of,  120  App.  Div.  738,  105  N.  Y.  Supp.  667 127,  133 

Neale,  Estate  of,  57  Hun,  591,  10  N.  Y.  Supp.  713 204 

Neilson  v.  Russell,  76  N.  J.  L.  27,  69  Atl.  476 4,  68,  22S,  249,  251,  252,  253 

Nettleton,  Appeal  of,  76  Conn.  236,  56  Atl.  565 4,  33,  40,  44 

Newcomb,  Estate  of,  35  Misc.  Rep.  589,  72  N.  Y.  Supp.  58- 304 

Newcomb,  Estate  of,  71  App.  Div.  606,  76  N.  Y.  Supp.  222,  affirmed,  172 

N.  Y.  608,  64  N.  E.  1123 248 

New  England  Trust  Co.  v.  Abbott,  205  Mass.  279,  137  Am.  St.  Rep.  437, 

91  N.  E.  379 165 

Nichols,  Estate  of,  91  Hun,  134,  36  N.  Y.  Supp.  538 183 

Nicollet  Nat.  Bank  v.  City  Bank,  38  Minn.  85,  8  Am.  St.  Rep.  643,  35  N. 

W.  577 49 

Niven,  Estate  of,  2.9  Misc.  Rep.  550,  61  N.  Y.  Supp.  956 330 

Nunnemacher  v.  State,  129  Wis.  190,  9  Ann.  Cas.  711,  9  L.  R.  A.,  N.  S., 

121,  108  N.  W.  627 4,  13,  15,  21,  S6,  33,  44,  293 

O'Berry,  Estate  of,  179  N.  Y.  285,  72  N.  E.  109 353 

O'Connor,  In  re,  21  R.  I.  465,  79  Am.  St.  Rep.  814,  44  Atl.  591 49 

O'Donohue,  Estate  of,  44  App.  Div.  186,  59  N.  Y.  Supp.  1087,  60  N.  Y. 

Supp.  690 296 

Offerman,  Estate  of,  25  App.  Div.  94,  48  N.  Y.  Supp.  993 75 

Ogsbury,  Matter  of,  7  App.  Div.  71,  39  N.  Y.  Supp.  978 161 

Opinion  of  the  Justices  (N.  H.),  79  Atl.  490 33 

Orient  Insurance  Co.  v.  Daggs,  172  U.  S.  537,  43  L.  Ed.  532,  19  Sup.  Ct. 

Rep.  281 S5 

Ormsby,  Estate  of,  7  Ohio  N.  P.  542,  5  Ohio  S.  &  C.  P.  Dec.  553 179 


TABLE   OF   CASES   CITED.  Ixi 

Page 

Orr  v.  Oilman,  183  U.  S.  278,  46  L.  Ed.  196,  22  Sup.  Ct.  Eep.  213 

70,  95,  110,  130 

Oyon,  Succession  of,  6  Rob.  504,  41  Am.  Dec.  274 259 

Page  v.  Edmunds,  187  U.  S.  596,  47  L.  Ed.  318,  23  Sup.  Ct.  Rep.  200 98 

Page  T.  Rives,  1  Hughes,  297,  Fed.  Gas.  No.  10,666 218 

Page,  Estate  of,  39  Misc.  Rep.  220,  79  N.  Y.  Supp.  382 86 

Palmer's  Estate,  In  re,  183  N.  Y.  238,  76  N.  E.  16 246,  248,  252,  254 

Palmer,  Estate  of,  33  App.  Div.  307,  53  N.  Y.  Supp.  847,  affirmed,  158  N. 

Y.  669,  52  N.  E.  1125 202 

Palmer,  Estate  of,  117  App.  Div.  360,  102  N.  Y.  Supp.  236. 159 

Pargoud,  Succession  of,  13  La.  Ann.  367 £68,  339 

Park,  Estate  of,  8  Misc.  Rep.  550,  29  N.  Y.  Supp.  1081 350 

Parson,  Estate  of,  51  Misc.  Rep.  370,  101  N.  Y.  Supp.  430,  affirmed,  117 

App.  Div.  .321,  102  N.  Y.  Supp.  168 91 

Parsons,  Estate  of,  117  App.  Div.  321,  102  N.  Y.  Supp.  168 161 

Patterson,  Estate  of,  146  App.  Div.  286,  130  N.  Y.  Supp.  970 33 

Patterson,  Estate  of,  127  N.  Y.  Supp.  284 163,  167 

Peck  v.  Kinney,  143  Fed.  76,  74  C.  C.  A.  270 122 

Peck,  Estate  of,  24  Abb.  N.  C.  365,  9  N.  Y.  Supp.  465 177 

Pell,  Matter  of,  171  N.  Y.  48,  89  Am.  St.  Rep.  791,  57  L.  R.  A.  540,  63  N. 

E.  789 53,  56,  58,  59 

Pennsylvania  Co.  for  Ins.  etc.  v.  McLain,  106  Fed.  367,  affirmed,  108  Fed. 

618,  47  C.  C.  A.  529 53 

People  v.  Burkhalter,  247  111.  600,  139  Am.  St.  Rep.  351,  93  N.  E.  379.  .154, 156 

People  v.  Byrd,  253  111.  223,  97  N.  E.  293 147 

People  v.  Coleman,  107  N.  Y.  544,  14  N.  E.  431 306 

People  v.  Feitner,  167  N.  Y.  1,  82  Am.  St.  Rep.  698,  60  N.  E.  265 98,  99 

People  v.  Field's  Estate,  248  111.  147,  33  L.  R..A.,  N.  S.,  230,  90  N.  E.  721.  80 

People  v.  Griffith,  245  111.  532,  92  N.  E.  313 10,  49,  51,  224,  244,  246,  350 

People  v.  Kelley,  218  111.  509,  75  N.  E.  1038 151,  158,  162,  167 

People  v.  Koenig,  37  Colo.  283,  11  Ann.  Caa.  140,  85  Pac.  1129 51,  175 

People  v.  MeOormick,  208  111.  437,  64  L.  R.  A.  775,  70  N.  E.  350.  .124,  125,  135 

People  v.  Moir,  207  111.  180,  99  Am.  St.  Rep.  205,  69  N.  E.  905 152,  161,  162 

People  v.  Nelms,  241  111.  571,  89  N.  E.  683 80 

People  v.  Prout  (Estate  of  Prout),  53  Hun,  541,  6  N.  Y.  Supp.  457 353 

People  v.  Raymond,  188  111.  454,  59  N.  E.  7 348 

People  v.  Rice,  40  Colo.  508,  91  Pac.  33 217,  354 

People  v.  Sholem,  238  111.  203,  87  N.  E.  390 334 

People  v.  Sholem,  244  111.  502,  91  N.  E.  704 294,  295,  336,  337 

People  v.  Williams,  69  Misc.  Rep.  402,  127  N.  Y.  Supp.  749 118,  351 

Pepke  v.  Grace  Hospital,  130  Mich.  493,  90  N.  W.  278 205 

Pepper,  Estate  of,  159  Pa.  508,  2S  Atl.  253 6,  211,  312 

Peters  v.  Lynchburg,  76  Va.  927 24 

Peters,  Estate  of,  69  App.  Div.  465,  74  N.  Y.  Supp.  1028 288 


Ixii  TABLE  OF   CASES  CITED. 

Page 
Pettit,  Estate  of,  65  App.  Div.  30,  72  N.  Y.  Supp.  469,  affirmed,  171  N.  Y. 

654,  63  N.  E.  1121 54 

Philadelphia  Trust  etc.  Co.  v.  McCoach,  129  Fed.  906,  64  C.  C.  A.  338 145 

Phipps,  In  re,  77  Hun,  325,  28  N.  Y.  Supp.  330,  affirmed,  143  N.  Y.  641, 

37  N.  E.  823 227 

Pierce  v.  Stevens,  205  Mass.  219,  91  N.  E.  319 53,  194,  342 

Pierce,  Estate  of,  132  App.  Div.  465,  116  N.  Y.  Supp.  816 92 

Platt,  Estate  of,  8  Misc.  Rep.  144,  29  N.  Y.  Supp.  396 354 

Plum,  Estate  of,  37  Misc.  Rep.  466,  75  N.  Y.  Supp.  940 121,  127 

Plummer  v.  Coler,  178  U.  S.  115,  44  L.  Ed.  998,  20  Sup.  Ct.  Rep.  829 

4,  10,  28,  68,  95,  303 

Pollock  v.  Farmers'  Loan  etc.  Co.,  158  U.  S.  601,  39  L.  Ed.  1108,  15  Sup. 

Ct.  Rep.  912 18 

Port  Huron  v.  Wright,  150  Mich.  279,  114  N.  W.  76 326 

Porter,  Estate  of,  67  Misc.  Rep.  19,  124  N.  Y.  Supp.  676 305 

Post,  Estate  of,  5  App.  Div.  113,  38  N.  Y.  Supp.  977 340 

Post,  Estate  of,  85  App.  Div.  611,  82  N.  Y.  Supp.  1079 129 

Potter,  Estate  of,  51  App.  Div.  212,  64  N.  Y.  Supp.  1013 114 

Potter,  Estate  of,  67  Misc.  Rep.  19,  124  N.  Y.  Supp.  676 316 

Powell  v.  Waldron,  89  N.  Y.  328,  42  Am.  Rep.  301 98 

Powers  v.  Massachusetts  Homeopathic  Hospital,  109  Fed.  294,  47  C.  C.  A. 

122,  66  L.  R.  A.  372 20G 

Prall,  Estate  of,  78  App.  Div.  301,  79  N.  Y.  Supp.  971 201 

Pratt  v.  Miller,  109  Mo.  78,  32  Am.  St.  R*p.  666,  18  S.  W.  965 49 

Preston,  Estate  of,  37  Misc.  Rep.  236,  75  N.  Y.  Supp.  251 243 

Prevost  v.  Greeneaux,  60  U.  S.  (19  How.)  1,  15  L.  Ed.  572,  affirming  12 

La.  Ann.  577 39,  259,  260,  341 

Price,  Estate  of,  62  Misc.  Rep.  149,  116  N.  Y.  Supp.  283 71,  160 

Prime,  Matter  of,  136  N.  Y.  347,  18  L.  R.  A.  713,  32  N.  E.  1091,  affirming 

64  Hun,  50,  18  N.  Y.  Supp.  603 65,  195 

Pritchard,  Succession  of,  118  La.  833,  43  South.  537 61,  66,  172 

Probst,  Estate  of,  40  Misc.  Rep.  431,  82  N.  Y.  Supp.  396 101 

Proctor,  Estate  of,  41  Misc.  Rep.  79,  83  N.  E.  643 306,  307 

Prout,  Estate  of ,  3  N.  Y.  831 340 

Provident  Hospital  &  Training  School  Assn.  v.  People,  198  111.  495,  64  N. 

E.  1031 65,  173 

Province,  Estate  of,  4  Pa.  Dist.  Rep.  591 181 

Pullen  v.  Wake  County  Commrs.,  66  N.  C.  361 12,  20,  33,  41 

Pullman,  Estate  of,  46  App.  Div.  574,  62  N.  Y.  Supp.  395 244,  246,  315 

Purdy,  Estate  of,  24  Misc.  Rep.  301,  53  N.  Y.  Supp.  735 316,  321 

Pryor  v.  Winter,  147  CaL  554,  109  Am.  St.  Rep.  162,  82  Pac.  202 50 

Quessart  v.  Canouge,  3  La.  560 259 

Rabasse,  Succession  of,  49  La.  Ann.  1405,  22  South.  767 260 

Ramsdill,  Estate  of,  190  N.  Y.  492,  18  L.  R.  A.,  N.  S.,  946,  83  N.  E.  584. . 

53,  223,  224 


TABLE   OF    CASES   CITED.  Ixiii 

Page 

Kansom  v.  United  States,  Fed.  Cas.  No.  11,574: 71 

Ray,  Estate  of,  13  Misc.  Rep.  480,  35  N.  Y.  Supp.  48-1 180 

Reish  v.  Commonwealth,  106  Pa.  521 161 

Rice  v.  Bradford,  180  Mass.  545,  63  N.  E.  7 189 

Rice,  Estate  of,  56  App.  Div.  253,  61  N.  Y.  Supp.  911,  68  N.  Y.  1146.  .305,  327 

Riemann,  Estate  of,  42  Misc.  Rep.  648,  87  N.  Y.  Supp.  731 81 

Ripley,  Estate  of,  122  App.  Div.  419,  106  N.  Y.  Supp.  844 113 

Rixner,  Succession  of,  48  La.  Ann.  552,  32  L.  R.  A.  177,  19  South.  597 

259,  263 

Robertson,  In  re,  5  Dem.  Sur.  92 122 

Rogers,  Estate  of,  2  Con.  Sur.  198,  10  N.  Y.  Supp.  22 102 

Rogers,  Estate  of,  149  Mich.  305,  119  Am.  St.  Rep.  677,  11  L.  R.  A.,  N.  S., 

1134,  112  N.  W.  931 227,  239,  242 

Rogers,  Estate  of,  71  App.  Div.  461,  75  N.  Y.  Supp.  835,  affirmed,  172  N. 

Y.  617,  64  N.  E.  112-5 102,  113,  119 

Romaine,  Matter  of,  127  N.  Y.  80,  12  L.  R.  A.  401,  27  N.  E.  759 236,  239 

Roman  Catholic  Church  v.  Niles,  86  Hun,  221,  33  N.  Y.  Supp.  243 174 

Roosevelt,  Matter  of,  143  N.  Y.  120,  25  L.  R.  A.  695,  38  N.  E.  281. .  .127,  145 

Rosenberg,  Estate  of,  114  N.  Y.  Supp.  726 92,  302 

Rosendahl,  Estate  of,  40  Misc.  Rep.  542,  82  N.  Y.  Supp.  992 176 

Rosenthal  v.  People,  211  111.  306,  71  N.  E.  1121 152,  157,  160 

Ross  v.  Commonwealth,  210  Pa.  544,  105  Am.  St.  Rep.  825,  1  L.  R.  A.,  N. 

S.,  409,  60  Atl.  169 50 

Rothschild,  Estate  of,  71  N.  J.  Eq.  210,  63  Atl.  615,  affirmed,  72  N.  J.  Eq. 

425,  65  Atl.  1118 93,  122,  194 

Rothschild,  Estate  of,  63  Misc.  Rep.  615,  118  N.  Y.  Supp.  654 323 

Runcie,  Estate  of,  36  Misc.  Rep.  607,  73  N.  Y.  Supp.  1120 125 

Ryan,  Estate  of,  3  N.  Y.  Supp.  136 184 

St.  Louis  v.  Howard,  119  Mo.  41,  41  Am.  St.  Rep.  630,  24  S.  W.  770 50 

Sala,  Succession  of,  50  La.  Ann.  1009,  24  South.  674 38,  258,  264 

San  Diego  County  v.  Schwartz,  145  Cal.  49,  78  Pac.  231 66 

San  Francisco  v.  Anderson,  103  Cal.  69,  42  Am.  St.  Rep.  98,  36  Pac.  1034. .     98 

Sanford,  Estate  of  (Neb.),  133  N.  W.  870 82,  217,  353 

Sanford,  Estate  of,  66  Misc.  Rep.  395,  123  N.  Y.  Supp.  284 72,  321 

Schaffer,  Succession  of,  13  La.  Ann.  113 38,  259,  260 

Schermerhorn,  Estate  of,  50  Misc.  Rep.  233,  100  N.  Y.  Supp.  480 97 

Schmidt,  Estate  of,  39  Misc.  Rep.  77,  78  N.  Y.  Supp.  879 327 

Scholey  v.  Rew,  90  U.  S.  (23  Wall.)  331,  23  L.  Ed.  99 258 

Schoolfield  v.  Lynchburg,  78  Va.  366 24,  26 

Scrimgeour,  Estate  of,  80  App.  Div.  388,  80  N.  Y.  Supp.  636,  affirmed,  175 

N.  Y.  507,  67  N.  E.  1089 246,  328,  329,  330,  352 

Seaman,  Matter  of,  147  N.  Y.  69,  41  N.  E.  401 58,  59,  159,  341 

Seavell  v.  Arnold,  131  Ky.  426,  115  S.  W.  232 187 

Seaver,  Estate  of,  63  App.  Div.  283,  71  N.  Y.  Supp.  544 118,  119 

Seymour,  Estate  of,  144  App.  Div.  151,  128  N.  Y.  Supp.  775 335 


Ixiv  TABLE   OF   CASES  CITED. 

Page 

Sharer,  Estate  of,  3fi  Misc.  Rep.  502,  73  N.  Y.  Snpp.  1057 162 

Sharp  v.  Loupe,  120  Cal.  89,  52  Pac.  134,  586 83 

Shelton  v.  Campbell,  109  Tenr.  690,  72  S.  W.  112 319,  345,  354 

Sherar,  Estate  of,  25  Misc.  Rep.  138,  54  N.  Y.  Supp.  930 351 

Sherman,  Estate  of,  153  N.  Y.  1,  46  N.  E.  1032 95,  97 

Sherman,  Estate  of,  30  Misc.  Rep.  547,  63  N.  Y.  Supp.  957 125 

Sherrell  v.  Christ  Church,  121  N.  Y.  701,  25  N.  E.  50 65,  173,  191,  200 

Sherwell,  Estate  of,  125  N.  Y.  376,  26  N.  E.  464 177,  282 

Shields,  Estate  of,  68  Misc.  Rep.  264,  124  N.  Y.  Supp.  1003 81,  323 

Shoenberger,  Estate  of,  221  Pa.  112,  128  Am.  St.  Rep.  737,  19  L.  R.  A., 

N.  S.,  290,  70  Atl.  579 78 

Short,  Estate  of ,  16  Pa.  63 55,  229,  237,  256 

Siebert,  Appeal  of,  110  Pa.  329,  1  Atl.  346 ' 161 

Silliman,  Estate  of,  79  App.  Div.  98,  80  N.  Y.  Supp.  336,  affirmed,  175  N. 

Y.  513,  67  N.  E.  1090 322,  331 

Skinner,  Estate  of,  45  Misc.  Rep.  559,  92  N.  Y.  Supp.  972,  order  modified, 

106  App.  Div.  217,  94  N.  Y.  Supp.  144 161,  304,  351 

Sloane,  Matter  of,  154  N.  Y.  109,  47  N.  E.  978 54,  121,  341 

Small,  Estate  of,  151  Pa.  1,  25  Atl.  23 102,  253 

Small,  Estate  of,  11  Pa.  Co.  Ct.  1 82 

Smith,  Estate  of,  23  N.  Y.  Supp.  762 310 

Smith,  Estate  of,  77  Hun,  134,  28  N.  Y.  Supp.  476 194 

Smith,  Estate  of,  14  Misc.  Rep.  169,  35  N.  Y.  Supp.  701 329 

Smith,  Estate  of,  71  App.  Div.  602,  76  N.  Y.  Supp.  185 307 

Smith,  In  re,  5  Dem.  Sur.  90 179 

Snyder  v.  Bettman,  190  U.  S.  249,  47  L.  Ed.  1035,  23  Sup.  Ct.  Rep.  803 . . 

17,  24 

Sondheim,  Estate  of,  32  Misc.  Rep.  296,  66  N.  Y.  Supp.  726,  affirmed,  69 

App.  Div.  5,  74  N.  Y.  Supp.  510 295 

Spangler,  Estate  of,  148  Iowa,  333.  127  N.  W.  625 192",  203 

Spaulding,  Estate  of,  49  App.  Div.  541,  63  N.  Y.  Supp.  694,  order  affirmed, 

163  N.  Y.  607,  57  N.  E.  1124 104,  151,  159 

Speed,  Estate  of,  216  111.  23,  108  Am.  St.  Rep.  189,  74  N.  E.  809,  affirmed, 

203  U.  S.  553,  8  Ann.  Cas.  157,  51  L.  Ed.  314,  27  Sup.  Ct.  Rep.  171. .. 

37,  43,  170,  198 

Speers,  Estate  of,  4  Ohio  N.  P.  238 224 

Spencer,  Estate  of,  4  N.  Y.  Supp.  395 184 

Spencer,  Estate  of,  119  App.  Div.  883,  107  N.  Y.  Supp.  543 113 

Sprankle  v.  Commonwealth,  2  Walk.  420 353 

Spreckels  v.  Spreckels,  116  Cal.  339,  58  Am.  St.  Rep.  170,  36  L.  R.  A.  497, 

48  Pac.  228 83 

Stadler  v.  First  Nat.  Bank,  22  Mont.  190,  74  Am.  St.  Rep.  582,  56  Pac. 

Ill 49 

Stanford,  Estate  of,  126  Cal.  112,  45  L.  R.  A.  788,  54  Pae.  259,  58  Pac. 

462 9,  11,  40,  173 

Stanton,  Estate  of,  142  Mich.  491,  105  N.  W.  1122 46,  69,  75,  222,  244,  347 


TABLE   OF   CASES   CITED.  IxV 

Page 
Starbuck,  Estate  of,  137  App.  Div.  866,  122  N.  Y.  Supp.  584,  affirmed,  201 

N.  Y.  531,  94  N.  E.  1098 85 

State  v.  Alston,  94  Tenn.  674,  28  L.  E.  A.  178,  30  S.  W.  750 

5,  10,  18,  33,  41,  149 

State  v.  Bazille,  87  Minn.  500,  94  Am.  St.  Rep.  718,  92  N.  W.  415 24,  29,  51 

State  v.  Bazille,  97  Minn.  11,  7  Ann.  Gas.  1056,  6  L.  B.  A.,  N.  S.,  732,  106 

N.  W.  93 33,  41,  44,  51 

State  v.  Brevard,  62  N.  C.  141 223,  272 

State  v.  Brim,  57  N.  C.  300 222 

State  v.  Carpenter,  129  Wis,  180,  8  L.  B.  A.,  N.  S.,  788,  104  N.  W.  641 

290,  291 

State  v.  Clark,  30  Wash.  439,  71  Pac.-20 26,  33,  41,  44 

State  v.  Dalrymple,  70  Md.  294,  299,  3  L.  R.  A.  372,  17  Atl.  82 

10,  33,  229,  244 

State  v.  District  Court,  41  Mont.  357,  109  Pac.  438 74,  222,  299 

State  v.  Ferris,  53  Ohio  St.  314,  30  L.  R..A.  218,  41  N.  E.  579 4,  6,  24,  41 

State  v.  Frederickson,  101  Me.  37,  115  Am.  St.  Rep.  295,  8  Ann.  Cas.  48,  6 

L.  R.  A.,  N.  S.,  186,  63  Atl.  535 50 

State  v.  Gorman,  40  Minn.  232,  2  L.  R.  A.  701,  41  N.  W.  948 24 

State  v.  Guilbert,  70  Ohio  St.  229,  1  Ann.  Cas.  2i5,  71  N.  E.  636 4,  20,  26,  41 

State  v.  Hamlin,  86  Me.  495,  41  Am.  St.  Rep.  569,  25  L.  R.  A.  632,  30  Atl. 

76 5,  7,  25,  33,  34,  40,  175 

State  v.  Handlin  (Ark.),  139  S.  W.  1112 5,  44 

State  v.  Harvey,  90  Minn.  180,  95  N.  W.  764 24 

State  v.  Henderson,  160  Mo.  190,  60  S.  W.  1093 20,  33,  43,  170 

State  v.  Mann,  76  Wis.  469,  45  N.  W.  526,  46  N.  W.  51 25 

State  v.  New  York  Yearly  Meeting  of  Friends,  61  N.  J.  Eq.  620,  48  Atl. 

227 201 

State  v.  Pabst,  139  Wis.  561,  121  N.  W.  351 50,  142,  156,  160,  353 

State  v.  Poydras,  9  La.  Ann.  165 38,  260 

State  v.  Probate  Court,  100  Minn.  192,  110  N.  W.  865 137,  138 

State  v.  Probate  Court,  101  Minn.  485,  112  N.  W.  878 175,  321,  323 

State  v.  Probate  Court  of  Washington  County,  102  Minn.  268,  113  N.  W. 

888 53 

State  v.  Probate  Court,  111  Minn.  297,  126  N.  W.  1070 282 

State  v.  Probate  Court,  112  Minn.  279,  128  N.  W.  18. .  .138,  147,  282,  290,  308 
State  v.  Switzler,  143  Mo.  287,  65  Am.  St.  R«p.  653,  40  L.  R.  A.  280,  45  S. 

W.  245 24,  28,  54,  64 

State  v.  Vance,  97  Minn.  532,  106  N.  W.  98 33 

State  v.  Vinsonhaler,  74  Neb.  675,  105  N.  W.  472 4,  21,  44,  263 

State  Street  Trus.t  Co.  v.  Stevens,  209  Mass.  373,  95  N.  E.  851 

4,  151,  152,  155,  162,  166,  274 

Stauffer,  Succession  of,  119  La.  66,  43  South.  928 55,  60,  102 

Stebbins,  Estate  of,  52  Misc.  Rep.  438,  103  N.  Y.  Supp.  563 71,  93,  184 

Stelwagen  v.  Durfee,  130  Mich.  166,  89  N.  W.  728 177 

Sterling,  Estate  of,  9  Misc.  Rep.  224,  30  N.  Y.  Supp.  385 341 


TABLE  OF   CASES   CITED. 

Page 

Stevens  v.  Bradford,  185  Mass.  439,  70  N.  E.  425 144 

Stewart,  Estate  of,  147  Pa.  383,  23  Atl.  599 344 

Stewart,  Matter  of,  131  N.  Y.  274,  14  L.  E.  A.  836,  30  N.  E.  184 

51,  58,  62,  106,  127,  354 

Stilwell,  Estate  of,  34  N.  Y.  Supp.  1123 183 

Stiger,  Matter  of,  7  Misc.  Rep.  268,  28  N.  Y.  Supp.  163 75 

Stinger  v.  Commonwealth,  26  Pa.  429 104,  291,  327 

Stixrud,  Estate  of,  58  Wash.  339,  Ann.  Gas.  1912A,  850,  33  L.  E.  A;,  N.  S., 

632,  109  Pae.  343 .- 7,  11,  265 

Stone,  Estate  of,  132  Iowa,  136,  10  Ann.  Caa.  1033,  109  N.  W.  455 

219,  268,  271 

Stone,  Estate  of,  56  Misc.  Rep.  247,  107-N.  Y.  Supp.  385 335 

Strobel,  Estate  of,  5  App.  Div.  621,  39  N.  Y.  Supp.  169 262 

Strode  v.  Commonwealth,  52  Pa.  181 95 

Sturges-  v.  United  States,  117  U.  S.  363,  29  L.  Ed.  920,  6  Sup.  Ct.  Rep.  767. 

. 341 

Stuyvesant,  Estate  of,  72  Misc.  Rep.  295,  131  N.  Y.  Supp.  197 82 

Surrogate  of  Cayuga  County,  In  re,  46  Hun,  657 127,  181 

Button,  Estate  of,  3  App.  Div.  208,  38  N.  Y.  Supp.  277,  affirmed,  149  N. 

Y.  618,  44  N.  E.  1128 76,  77,  314 

Swanson  v.  Swanson,  2  Swan,  446 1 

Sweetland,  Estate  of,  20  N.  Y.  Supp.  310 183 

Swift,  Estate  of,  137  N.  Y.  77,  18  L.  R.  A.  709,  32  N.  E.  1006 

9,  76,  223,  226,  230,  312 

Swift,  Estate  of,  2  Con.  644,  16  N.  Y.  Supp.  193,  affirmed,  64  Hun,  629,  19 

N.  Y.  Supp.  292,  modified,  137  N.  Y.  77,  18  L.  E.  A.  709,  32  N.  E. 

1096 177 

Taylor,  Estate  of,  80  Hun,  589,  30  N.  Y.  Supp.  582 194 

Tharp  v.  Commonwealth,  58  Pa.  500 181 

Thayer,  Estate  of,  58  Misc.  Rep.  117,  110  N.  Y.  Supp.  751 256 

Thomas,  Estate  of,  3  Misc.  Rep.  388,  24  N.  Y.  Supp.  713 183,  236,  256 

Thomas,  Estate  of,  39  Misc.  Rep.  223,  79  N.  Y.  Supp.  571 304,  317,  319 

Thompson  v.  Advocate  G  eneral,  12  Clark  &  P.  1 225 

Thompson  v.  Kidder,  74  N.  H.  89,  12  Ann.  Cas.  948,  65  Atl.  395* 26,  33,  43 

Thompson,  Estate  of,  57  App.  Div.  317,  68  N.  Y.  Supp.  18 337 

Thompson,  Estate  of,  14  N.  Y.  St.  Rep.  487 181 

Thomson,  Estate  of,  12  Phila.  36 268 

Thome,  In  re,  44  App.  Div.  8,  60  N.  Y.  Supp.  419,  appeal  dismissed,  162 

N.  Y.  238,  56  N.  E.  625 151,  154,  158 

Thrall,  Estate  of ,  157  N.  Y.  46,  51  N.  E.  411 186 

Tiffany,  Estate  of,  143  App.  Div.  327,  128  N.  Y.  Supp.  106,  affirmed,  202 

N.  Y.  550,  95  N.  E.  1140 240 

Tilford  v.  Dickinson,  79  N.  J.  L.  302,  75  Atl.  574 235 

Tilghman  v.  Eidman,  131  Fed.  651 65 

Tilt  v.  Kelsey,  207  U.  S.  43,  52  L.  Ed.  95,  28  Sup.  Ct.  Eep.  1 346 


TABLE   OF   CASES   CITED.  Ixvii 

Page 

Timken,  Estate  of,  158  Cal.  51,  109  Pac.  608 281 

Title  Guaranty  &  Trust  Co.  v.  Ward,  184  Fed.  447,  affirming  164  Fed.  459. 

, 67,  145 

Tracy,  In  re,  179  N.  Y.  501,  72  N.  E.  519 124,  126,  129,  131,  146 

Travis,  Estate  of,  19  Misc.  Rep.  393,  44  N.  Y.  Supp.  349 127 

Trippet  v.  State,  149  Cal.  521,  8  L.  R.  A.,  N.  S.,  1210,  86  Pac.  1084 22,  66 

Trustees  of  Young  Men's  Christian  Assn.  v.  Paterson,  61  N.  J.  L.  420,  39 

Atl.  655 192 

Tucker,  Estate  of,  27  Misc.  Rep.  616,  59  N.  Y.  Supp.  699 119 

Tulane,  Matter  of,  5,1  Hun,  213,  4  N.  Y.  Supp.  36 239 

Tuohy,  Estate  of*  35  Mont.  431,  90  Pac.  170 4,  13,  28,  74 

Twigg,  Estate  of,  15  N.  Y.  Supp.  548 104,  194 

Tyson  v.  State,  28  Md.  577 20,  33 

Ullmann,  Estate  of,  13'7  N.  Y.  403,  33  N.  E.  480 286,  288 

Underbill,  Matter  of,  2  Con.  Sur.  262,  20  SN.  Y.  Supp.  134. .  .102,  177,  204,  220 

United  Society  v.  Eagle  Bank,  7  Con.  456,  468 50 

Union  Trust  Co.  v.  Durfee,  125  Mich.  487,  84  N.  W.  1101 

4,  10,  23,  24,  44,  122,  293,  294 

Union  Trust  Co.  v.  Lynch,  148  Fed.  49,  affirmed,  164  Fed.  161,  90  C.  C.  A. 

147 145 

Union  Trust  Co.  v.  Wayne  Probate  Judge,  125  Mich.  487,  84  N.  W.  1101. . 

33,  41,  340 

United  States  v.  Allen,  9  Ben.  154,  Fed.  Cas.  No.  14,430 270 

United  States  v.  Fidelity  Trust  Co.,  222  U.  S.  158,  56  L.  Ed.  — ,  32  Sup. 

Ct.  Rep.  59 145 

United  States  v.  Hazard,  8  Fed.  380 145,  275 

United  States  v.  Marion  Trust  Co.,  205  U.  S.  539,  51  L.  Ed.  1191,  27  Sup. 

Ct.  Rep.  794,  affirming  143  Fed.  301,  74  C.  C.  A.  439 67 

United  States  v.  New  York  L.  L  &  T.  Co.,  9  Ben.  413,  Fed.  Cas.  No.  15,873 

341 

United  States  v.  Pennsylvania  Co.,  27  Fed.  539 270 

United  States  v.  Perkins,  163  U.  S.  625,  41  L.  Ed.  287,  16  Sup.  Ct.  Rep. 

1073 4,  10,  11,  56,  57,  73,  98,  185,  186,  225 

United  States  v.  Robertson,  183  Fed.  711 71 

United  States  v.  Townsend,  8  Fed.  306 341 

United  States  v.  Truck,  27  Fed.  541 275 

University  of  Louisville  v.  Hammock,  127  Ky.  564,  128  Am.  St.  Rep.  355, 

14  L.  R.  A.,  N.  S.,  784,  106  S.  W.  219 206 

Vanderbilt  v.  Eidman,  196  U.  S.  480,  49  L.  Ed.  563,  25  Sup.  Ct.  Rep.  331. . 

134,  145 

Vanderbilt,  Estate  of,  50  App.  Div.  246,  63  N.  Y.  Supp.  1079,  affirmed, 

163  N.  Y.  597,  57  N.  E.  1127 

55,  110,  113,  130,  146,  199,  205,  219,  272,  300,  308,  325 

Van  Pelt,  Estate  of,  63  Misc.  Rep.  616,  118  N.  Y.  Supp.  655 72,  323 


TABLE   OF   CASES   CITED. 

Page 

Van  Storch,  Estate  of,  7  Pa.  Dist.  Rep.  204 139 

Vanuxen,  Estate  of,  212  Pa.  315,  1  L.  R.  A.,  N.  S.,  400,  61  Atl.  876 80 

Vassar,  Matter  of,  127  N.  Y.  1,  27  N.  E.  394 73,  199,  203,  206 

Vinot,  Matter  of,  7  N.  Y.  Supp.  517 87,  125,  207,  208,  224 

Vivanti,  Estate  of,  138  App.  Div.  281,  122  N.  Y.  Supp.  954 72,  75,  101,  224 

Von  Post,  Estate  of,  35  Misc.  Rep.  367,  71  N.  Y.  Supp.  1039 352 

Walker  v.  People,  192  111.  106,  61  N.  E.  489 20,  303,  305 

Wallace  v.  Myers,  38  Fed.  184,  4  L.  R.  A.  171 33,  95 

Wallace,  Estate  of,  4  N.  Y.  Supp.  465 127 

Wallace,  Estate  of,  28  Misc.  Rep.  603,  59  N.  Y.  Supp.  1084 330 

Wallace,  In  re,  71  App.  Div.  284,  75  N.  Y.  Supp.  838 291 

Walters,  Estate  of,  1  Pa.  Co.  Ct,  Rep.  447 208 

Walworth,  Estate  of,  66  App.  Div.  171,  72  N.  Y.  Supp.  984 119 

Warburton  v.  White,  176  U.  S.  485,  44  L.  Ed.  555,  20  Sup.  Ct.  Rep.  404. .  83 

Warren,  Estate  of,  62  Misc.  Rep.  444,  116  N.  Y.  Supp.  1034 113,  330 

Warrimer  v.  People,  6  Dem.  Sur.  (N.  Y.)  211 181 

Watson,  Estate  of,  171  N.  Y.  256,  63  N.  E.  1109 202 

Waugh,  Appeal  of,  78  Pa.  436 161 

Wayne,  Estate  of,  2  Pa.  Co.  Ct.  Rep.  93,  18  Wkly.  Not.  Gas.  10 181 

Weaver's  Estate  v.  State,  110  Iowa,  328,  81  N.  W.  603 227 

Weiler,  Estate  of,  122  N.  Y.  Supp.  608 81 

Weller  v.  Wheelock,  155  Mich.  698,  118  N.  W.  609 269 

Wells,  Estate  of,  142  Iowa,  255,  120  N.  W.  713 214,  216 

Wescott,  Estate  of,  11  Misc.  Rep.  589,  33  N.  Y.  Supp.  426 „  127 

Westf eldt,  Succession  of,  122  La.  836,  48  South.  281 223 

Westhus  v.  Union  Trust  Co.,  164  Fed.  795,  90  C.  C.  A.  441 145 

Weston  v.  Goodrich,  86  Hun,  194,  33  N.  Y.  Supp.  282 293 

Westurn,  Estate  of,  152  N.  Y.  93,  102,  46  N.  E.  315 

73,  215,  269,  270,  296,  304,  320,  336 

Wharton,  Estate  of,  14  Phila.  279 139 

Wheeler,  Estate  of,  1  Misc.  Rep.  450,  22  N.  Y.  Supp.  1075 76,  127,  184 

Wheeler,  Estate  of,  115  App.  Div.  616,  100  N.  Y.  Supp.  1044 184 

White,  Estate  of,  118  App.  Div.  869,  103  N.  Y.  Supp.  688 191,  202 

White,  Estate  of,  42  Wash.  360,  84  Pac.  831 1 

Whiting,  Estate  of,  2  App.  Div.  590,  38  N.  Y.  Supp.  131 95 

Whiting,  Estate  of,  69  Misc.  Rep.  526,  127  N.  Y.  Supp.  960,  .affirmed,  139 

App.  Div.  905,  124  N.  Y.  Supp.  1134 283 

Whiting,  Matter  of,  150  N.  Y.  27,  55  Am.  St.  Rep.  640,  34  L.  R.  A.  232,  44 

N.  E.  715 93,  96,  97,  226,  241,  244,  245 

Whitney,  Estate  of,  69  Misc.  Rep.  131,  124  N.  Y.  Supp.  909 146 

Wieting  v.  Morrow,  151  Iowa,  590,  132  N.  W.  193 5,  231,  352 

Wilcox,  Estate  of,  118  N.  Y.  Supp.  254 146,  278 

Wilhelmi  v.  Wade,  65  Mo.  39 269,  273 

Wilkens,  Estate  of,  144  App.  Div.  803,  129  N.  Y.  Supp.  600 92 

Will  v.  Seaver,  63  App.  Div.  283,  71  N.  Y.  Supp.  544 179 


TABLE   OF   CASES   CITED. 

Page 
Willet,  Estate  of,  51  Misc.  Eep.  176,  100  N.  Y.  Supp.  850,  affirmed,  119 

App.  Div.  119,  104  N.  Y.  Supp.  1150 331,  351 

Williams  v.  Mosher,  6  Gill,  454 220 

Williamson,  Estate  of,  153  Pa.  508,  26  Atl.  246 72,  74,  78 

Willing,  Estate  of,  11  Phila.  119 : 139 

Wilmerding,  Estate  of,  117  Cal.  281,  49  Pac.  181 11,  13,  33,  34,  40 

Wilson  v.  Donaldson,  117  Ind.  356,  10  Am.  St.  Eep.  48,  3  L.  B.  A.  266, 

20  N.  E.  250 50 

Winchester,  Estate  of,  140  Cal.  468,  74  Pac.  10 182 

Winkley  v.  Newton,  67  N.  H.  80,  35  L.  E.  A.  756,  36  Atl.  610 238 

Winn  v.  Schenck,  33  Ky.  Law  Eep.  615,  110  S.  W.  827 53,  64,  107,  113 

Winters,  Estate  of,  21  Misc.  Eep.  552,  48  N.  Y.  Supp.  1097 300 

Wirringer  v.  Morgan,  12  Cal.  App.  26,  106  Pac.  425 185 

Wolfe,  Estate  of,  137  N.  Y.  205,  33  N.  E.  156 285,  290,  300,  310,  326 

Wolfe,  Estate  of,  89  App.  Div.  349,  85  N.  Y.  Supp.  949,  affirmed,  179  N. 

Y.  599,  72  N.  E.  1152 219,  271,  272 

Wolfe,  Estate  of,  2  Con.  600,  15  N.  Y.  Supp.  539. .  .173,  191,  199,  200,  300,  339 
Wolfe,  Estate  of,  29  Abb.  N.  C.  340,  66  Hun,  389,  21  N.  Y.  Supp.  515,  522 

308 

Wolfe,  Estate  of,  23  Misc.  Eep.  439,  52  N.  Y.  Supp.  415 194 

Wood,  Estate  of,  40  Misc.  Eep.  155,  81  N.  Y.  Supp.  511 104,  158,  303 

Woodward,  Estate  of,  153  Cal.  39,  94  Pac.  242 54,  284 

Woolsey,  In  re,  19  Abb.  N.  C.  232. 180 

Wormser,  Estate  of,  36  Misc.  Eep.  434,  73  N.  Y.  Supp.  748 313 

Wormser,  Estate  of,  28  Misc.  Eep.  608,  59  N.  Y.  Supp.  1088 312,  313 

Wormser,  Estate  of,  51  App.  Div.  441,  64  N.  Y.  Supp.  897 319,  336,  353 

Wright  v.  Blakeslee,  101  U.  S.  174,  25  L.  Ed.  1048 145 

Wright,  Appeal  of,  38  Pa.  507 149,  161 

Wyckoff  v.  O'Neill,  71  N.  J.  Eq.  729,  71  Atl.  388 353 

Wyckoff  v.  O'Neil,  72  N.  J.  Eq.  880,  67  Atl.  32 349 

Wyoming  Coal  Min.  Co.  v.  State,  15  Wyo.  97,  123  Am.  St.  Eep.  1014,  87 

Pac.  337,  984 49 

Wytheville,  Town  of,  v.  Johnson,  108  Va.  589,  128  Am.  St.  Eep.  981,  18 

L.  E.  A.,  N.  S.,  960,  62  S.  E.  328 24 

Zefita,  Estate  of,  167  N.  Y.  280,  60  N.  E.  598,  affirming  44  App.  Div.  340, 

60  N.  Y.  Supp.  927 125 

Zickler  v.  Union  Bank  &  Trust  Co.,  104  Tenn.  277,  57  S.  W.  341 63 


INHEKITANCE  TAXATION. 


CHAPTER  I. 
NATURE,  BASIS,  AND  EXTENT  OF  TAX. 

§  1.  Meaning  of  Inheritance  Tax. 

§  2.  Various  Forms  of  Tax. 

§  3.  Distinction  Between  Various  Taxes. 

§.  4.  Tax  not  Regarded  as  Charge  on  Property. 

§  5.  Tax  Considered  as  Charge  on  Succession. 

§  6.  Other  Concepts  of  Tax. 

§  7.  Basis  of  Eight  of  State  Legislature  to  Impose  Tax. 

§  8.  Basis  of  Right  of  Congress  to  Impose  Tax. 

§  9.  Origin  and  Extent  of  Inheritance  Taxation. 

§  10.  Important  Features  of  This  Form  of  Taxation. 

§  1.  Meaning  of  Inheritance  Tax. — The  term  "in- 
heritance tax,"  as  generally  employed,  applies  to  all 
transmissions  of  property  occasioned  by  the  death  of 
the  owner.  It  is  not  confined  to  transfers  by  inherit- 
ance or  succession  proper,  that  is,  to  transmissions  by 
operation  of  law  of  the  estates  of  persons  dying  intes- 
tate; but  it  applies  as  well  to  transmissions  of  prop- 
erty by  will,  gifts  causa  mortis,  or  gifts  inter  vivos  in 
contemplation  of  or  to  take  effect  at  death,  made  per- 
haps with  the  intention  (although  this  circumstance 
is  generally  immaterial)  of  evading  the  tax  and  ob- 
viating the  necessity  of  probate  proceedings.  Trans- 
fers, either  by  succession,  devise,  bequest,  or  gift  in 
contemplation  of  or  to  take  effect  upon  death,  are  alike 
subject  to  the  inheritance  tax  as  it  is  ordinarily  now 
imposed.1 

i  Knox  v.  Emerson,  123  Tenn.  509,  131  S.  W.  972;  Estate  of  White, 
42  Wash.  360,  84  Pac.  831.  The  Tennessee  court  in  the  above  case, 
referring  to  inheritance  taxation,  said:  "Coming  to-  us  from  the  civil 
law,  it  is  proper,  therefore,  as  was  done  in  Swanson  v.  Swanson,  2  Swan, 
446,  to  look  to  that  law  in  order  to  ascertain  the  meaning  attached 
by  it  to  the  word  'inheritance';  and  in  doing  so  it  is  found,  as  is 

1  (1). 


2  INHERITANCE  TAXATION. 

§  2.  Various  Forms  of  Tax. — The  tax  also  some- 
times takes  the  form  of  an  estate  duty,  or  stamp 
tax  on  the  probate  of  wills,  letters  of  administra- 
tion, bonds  of  administrators,  and  inventories. 
Looking  over  the  whole  field,  and  considering  death 
duties  as  imposed  by  the  different  governments 
of  the  earth,  said  Justice  White,  the  following  ap- 
pears: "  Although  different  modes  of  assessing  such 
duties  prevail,  and  although  they  have  different  acci- 
dental names,  such  as  probate  duties,  stamp  duties, 
taxes  on  the  transaction,  or  the  act  of  passing  an  estate 
or  a  succession,  legacy  taxes,  estates  taxes  or  privilege 
taxes,  nevertheless  tax  laws  of  this  nature  in  all  coun- 
tries rest  in  their  essence  upon  the  principle  that  death 
is  the  generating  source  from  which  the  particular 
taxing  power  takes  its  being,  and  that  it  is  the  power 
to  transmit,  or  the  transmission  from  the  dead  to  the 
living,  on  which  such  taxes  are  more  immediately 
rested. ' '  * 

§  3.  Distinction  Between  Various  Taxes. — A  dis- 
tinction has  been  made,  however,  between  an  in- 
heritance or  succession  tax  and  a  probate  or  estate 
tax.  There  are,  it  has  been  said,  two  classes  of  death 
duties.  One  reaches  the  interest  which,  ceased  with 

stated  in  that  opinion,  to  be  the  succession  to  all  the  rights  of  the 
deceased.  It  is  of  two  kinds — that  which  arises  by  testament,  when 
the  testator  gives  his  succession  to  a  particular  person;  and  that  which 
arises  by  operation  of  law,  which  is  called  succession  ab  intestate; 
Bouvier's  Law  Dictionary,  p.  1037.  Such  has  been  the  meaning  attached 
to  the  word  'inheritance'  when  used  in'  our  legislation  with  regard  to 
succession  taxes.  In  defining  the  sources  from  which  public  revenues 
were  derived,  in  Code  of  1858,  section  538  (Shannon's  Code,  sec.  685), 
among  them  is  included  'collateral  inheritance  taxes.'  It  is  inconceiv- 
able that  the  framers  of  the  code,  by  this  use  of  the  term  'inheritance,' 
intended  to  confine  this  tax  to  those  taking  as  heirs  the  real  estate 
of  the  ancestor,  or  to  devolutions  of  property  by  operation  of  law,  and 
.exclude  successions  by  will  to  either  personal  or  real  estate." 

2  Knowlton  T.  Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20  Sup.  Ct.  Bep.  747; 
Bixon  v.  Bicketts,  26  Utah,  215,  72  Paa.  947. 


NATURE,  BASIS,  AND  EXTENT  OP  TAX.  3 

the  death  of  the  former  owner,  and  is  a  tax  on  the 
transmission  of  the  property;  into  this  class  fall  pro- 
bate and  estate  duties,  the  burden  of  which  is  borne 
by  the  estate.  The  other  reaches  the  interest  to  which 
heirs,  devisees,  and  legatees  succeed  on  the  death  of 
the  owner.  This  is  a  burden  upon  the  right  to  re- 
ceive, and  is  to  be  paid  by  the  persons  beneficially 
interested,  that  is,  the  heirs,  devisees,  or  legatees.3 
This  distinction  may  assume  importance,  and  this  ter- 
minology prove  a  convenience,  in  considering  some  of 
the  problems  which  inheritance  taxation  presents,  but 
usually  they  are  of  little  moment.  To  quote  from  the 
Connecticut  court: 

"  However  computed,  the  tax  is  an  exaction  from 
the  estate  of  the  decedent,  whose  stress  incidentally 
falls  on  the  legatees  or  distributees  with  more  or  less 
equal  or  unequal  burden,  according  to  the  policy 
adopted  by  the  state  in  fixing  the  scope  of  the  exac- 
tion, the  mode  of  ascertaining  its  amount,  and  of  en- 
forcing its  collection.  -  Nor  is  it  material  to  the  essence 
of  the  tax  at  what  time  it  is  ascertained  and  collected 
during  the  passage  of  the  property,  through  the  chan- 
nel of  the  law,  from  the  dead  to  the  living — whether 
the  property  is  tapped  as  it  falls  from  the  lifeless 
hand,  or  midway  in  its  course,  or  as  it  passes  into  the 
grip  of  the  new  owner;  whether  it  is  called  a  probate, 
a  succession,  or  a  legacy  tax.  Such  nomenclature  is 
convenient.  Its  distinctions  may  be  important  for 
clear  discussion  of  the  policy  of  death  duties  and  the 
mode  of  using  this  form  of  taxation,  and  an  accurate 
conception  of  them  may  serve  to  throw  light  upon  the 
actual  intent  of  the  legislature  when  language  of 
doubtful  meaning  is  used  in  determining  the  amount 
and  manner  of  enforcing  the  tax.  But  they  are  of  no 
practical  importance  in  this  case,  and  we  do  not  con- 

«  Estate  of  Macky,  46  Colo.  79,  23  L.  E.  A.,  N.  S.,  1207,  102  Pac. 
1075. 


4  INHERITANCE  TAXATION. 

sider  the  questionable  claim  that  the  act  before  us 
imposes  a  legacy  tax,  as  distinguished  from  a  tax  on 
the  estate.  It  may  be  conceded,  for  the  purposes  of 
argument,  that  the  duty  imposed  is  more  accurately 
termed  a  legacy  tax. ' '  " 

§  4.    Tax  not  Regarded  as  Charge  on  Property. — On 

the  general  proposition  that  an  inheritance  tax  is  not 
on  the  property,  but  on  the  transmission  or  succes- 
sion, the  authorities  are  agreed.  The  charge  is  not 
on  the  property  itself,  although  the  value  of  the  prop- 
erty determines  the  amount  of  the  tax,  but  rather  upon 
the  right  or  privilege  to  transmit  or  receive  the  prop- 
erty. It  is  the  transmission  or  reception,  not  the  thing 
transmitted  or  received,  that  is  taxed.*  Important 
constitutional,  as  well  as  other,  considerations  flow 
from  this  characteristic  of  inheritance  taxation,  for  if 
the  tax  is  not  on  property,  or  if  it  is  an  indirect  as 
distinguished  from  a  direct  tax,  then  it  is  not  within 
the  purview  of  certain  limitations  placed  by  the  or- 
ganic law  upon  the  power  of  taxation. 

s»  Appeal  of  Nettleton,  76  Conn.  235,  56  Atl.  565. 

*  In  re  House  Bill  No.  122,  23  Colo.  492,  48  Pac.  535;  National  Safe 
Deposit  Co.  v.  Stead,  250  111.  584,  95  N.  E.  973;  Union  Trust  Co.  v. 
Durfee,  125  Mich.  487,  84  N.  W.  1101;  Estate  of  Fox,  154  Mich.  5, 
117  N.  W.  558;  Estate  of  Tuohy,  36  Mont.  431,  90  Pac.  170;  Gels- 
thorpe  v.  Furnell,  20  Mont.  299,  39  L.  R.  A.  170,  51  Pac.  267;  State 
v.  Vinsonhaler,  74  Neb.  675,  105  N.  W.  472;  Neilson  v.  Russell,  76 
N.  J.  L.  27,  69  Atl.  476;  Eastwood  v.  Russell  (N.  J.),  81  Atl.  108; 
Estate  of  Davis,  149  N.  Y.  539,  44  N.  E.  185;  State  v.  Ferris,  9  Ohio 
C.  C.  298,  2  Ohio  Dec.  299,  affirmed  53  Ohio  St.  314,  30  L.  R.  A.  218, 
41  N.  E.  579;  State  v.  Guilbert,  70  Ohio  St.  229,  71  N.  E.  636;  Nunne- 
macher  v.  State,  129  Wis.  190,  9  Ann.  Gas.  711,  9  L.  R.  A.,  N.  S.,  121, 
108  N.  W.  627;  Plummet  v.  Coler,  178  U.  S.  115,  44  L.  Ed.  998,  20  Sup. 
Ct.  Rep.  829;  United  States  v.  Perkins,  163  U.  S.  625,  41  L.  Ed.  287, 
16  Sup.  Ct.  Rep.  1073. 

The  tax  is  not  upon  the  property  itself,  although  its  value  is  made 
the  basis  of  taxation,  but  on  the  right  of  transmission,  where,  under 
the  deed,  grant  or  gift,  the  property  is  not  to  vest  in  possession  or 
enjoyment  until  the  death  of  the  grantor,  donor  or  settlor,  or  if  not 
expressed,  such  intention  is  found:  State  Street  Trust  Co.  v.  Stevens 
(Mass.),  95  N.  E.  851. 


NATURE,  BASIS,  AND  EXTENT  OP  TAX.  5 

§  5.    Tax  Considered  as  Charge  on  Succession. — 

Many  authorities  are  coming  to  define  the  inherit- 
ance tax  more  specifically  by  saying  that  it  is  a  tax 
on  the  right  of  succession,  or  the  right  of  the  heir, 
devisee  or  legatee  to  receive.5  This  theory  has  been 
clearly  elucidated  by  the  Colorado  court  in  holding 
that  the  inheritance  statute  of  that  state  imposes  a 
tax  on  the  right  of  the  beneficiaries  to  take,  not  on  the 

6  Estate  of  Hite,  159  Cal.  392,  113  Pac.  1072;  Kochersperger  v. 
Drake,  167  HI.  122,  41  L.  R.  A.  446,  47  N.  E.  321;  Wieting  v.  Morrow, 
151  Iowa,  590,  132  N.  W.  193;  Lacy  v.  State  Treasurer  (Iowa),  121 
N.  W.  179;  Estate  of  Irish,  28  Misc.  Rep.  647,  60  N.  Y.  Supp.  30; 
Estate  of  Linkletter,  134  App.  Div.  309,  118  N.  Y.  Supp.  878. 

"No  decision  has  been  pointed  out  to  us  wherein  is  discussed  the 
specific  nature  of  an  inheritance  or  succession  tax,  as  distinguished 
from  that  of  a  probate,  estate  or  transfer  tax,  but  that  it  is  held  that 
an  inheritance  or  succession  tax  is  on  the  right  to  receive  the  property": 
Estate  of  Macky,  46  Colo.  79,  23  L.  R.  A.,  N.  S.,  1207,  102  Pac.  1075. 

"Inheritance  taxes  are  not  laid  upon  property,  but  upon  the  privilege 
or  right  of  succession  to  it":  State  "v.  Handlin  (Ark.),  139  S.  W.  1113. 

"The  tax  under  this  statute  is,  once  for  all,  an  excise  or  duty  upon 
the  right  or  privilege  of  taking  property  by  will  or  descent  under  the 
law  of  the  state":  State  v.  Hamlin,  86  Me.  495,  41  Am.  St.  Rep.  569, 
25  L.  R.  A.  632,  30  Atl.  76. 

"It  must  be  borne  in  mind  that  the  tax  is  not  upon  the  property, 
but  the  right  or  privilege  of  acquiring  it  by  succession.  It  is  a  condition 
upon  which  the  person  may  take  the  estate  of  a  deceased  relative  or 

testator  by  his  will It  is  not  a  tax  upon  the  right  of  alienation, 

but  on  the  privilege  of  receiving  by  inheritance  or  will  or  otherwise 
at  the  death  of  a  former  owner":  State  v.  Alston,  94  Tenn.  674,  28 
L.  R.  A.  178,  30  S.  W.  750. 

"Properly  understood,  it  is  not  the  right  to  transmit,  but  the  right 
and  privilege  to  receive,  that  is  taxed.  The  right  to  dispose  of  prop- 
erty during  the  lifetime  of  the  owner  cannot  be  separated  from  the 
property  itself,  and  therefore  to  tax  the  right  of  disposal  by  contract 
in  the  lifetime  of  the  owner,  even  though  to  take  effect  at  his  death, 
ia  to  tax  the  property  itself.  But  the  right  to  dispose  of  the  property 
by  will  or  descent,  taking  effect  after  the  death  of  the  owner,  is  not 
so  closely  connected  with  the  right  of  property,  and  it  is  not  so  clear 
that  such  right  may  not  be  taxed.  But,  when  the  right  to  receive  the 
property  is  considered,  it  is  clear  that  the  right  is  distinct  and  separate 
from  the  property  itself,  and  the  state  may  tax  this  right  to  receive 
property;  and  this  is  so  whether  the  property  is  disposed  of  by  the 
owner  during  his  lifetime,  or  at  his  death.  This  right  to  receive  prop- 
erty is  under  the  control  of  the  legislature,  and  it  has  the  power  to 


6  INHERITANCE  TAXATION. 

property,  nor  yet  on  the  right  of  the  decedent  to  give. 
Hence  it  is  found  that  legacies  to  a  municipality  for 
a  hospital,  and  to  the  regents  of  the  state  university 
for  an  auditorium,  being  gifts  to  agencies  of  the  state 
engaged  in  the  discharge  of  governmental  functions, 
are  not  subject  to  the  inheritance  tax,  by  reason  of  the 
rule  that  the  property  of  a  state  or  municipality,  held 
for  a  public  use,  is  impliedly  exempt  from  taxation.' 

And  the  California  court,  construing  the  inheritance 
act  as  imposing  a  tax  solely  upon  persons  for  the  priv- 
ilege of  succeeding  to  property  as  heirs,  devisees,  or 
legatees,  has  affirmed  that  so  much  of  the  estate  of 
the  decedent  as  is  lawfully  diverted  from  them  for  the 
family  allowance  and  homestead,  and  for  the  payment 
of  debts  and  administration  expenses,  is  not  to  be  in- 
cluded in  fixing  the  tax  to  be  paid.  The  tax  is  on  the 
succession,  the  net  succession,  and  is  measured  by  what 
the  beneficiaries  actually  receive,  not  the  full  amount 
of  the  estate  of  which  the  decedent  died  possessed.7 
Other  courts  have  taken  the  same  view,  namely,  that 
the  tax  is  imposed  for  the  privilege  of  succeeding  to 
the  property  of  a  decedent,  and  therefore  can  justly 
attach  only  as  to  so  much  property  as  actually  passes 
to  the  heirs,  devisees  and  legatees,  after  the  satisfac- 
tion of  such  charges  and  burdens  as  may  lawfully  be 
satisfied  in  due  course  of  administration.8 

regulate  and  lay  such  burdens  thereon  as  it  may  see  fit,  within  the 
provisions  of  the  constitution":  State  v.  Ferris,  53  Ohio  St.  314,  30 
L.  E.  A.  218,  41  N.  E.  579. 

"The  most  exact  rule  is  that  which  regards  the  tax  as  upon  the  right 
to  receive  property,  rather  than  on  the  right  to  dispose  of  it":  Gels- 
thorpe  v.  Furnell,  20  Mont.  299,  39  L.  E.  A.  170,  51  Pac.  267. 

«  Estate  of  Macky,  46  Colo.  79,  23  L.  E.  A.,  N.  S.,  1207,  102  Pac. 
1075. 

i  Estate  of  Kennedy,  157  Cal.  517,  108  Pac.  280. 

«  Appeal  of  Gallup,  76  Conn.  617,  57  Atl.  699;  Morrow  v.  Durant, 
140  Iowa,  437,  118  N.  W.  781;  Estate  of  G-ihon,  160  N.  Y.  443,  62 
N.  E.  561;  Estate  of  Pepper,  159  Pa.  508,  28  Atl.  353. 


NATURE,  BASIS,  AND  EXTENT  OF  TAX.  7 

§  6.  Other  Concepts  of  Tax.— The  Massachusetts 
court  defines  the  inheritance  tax  as  "an  excise  tax, 
imposed  not  only  upon  the  right  of  the  owner  of 
property  to  transmit  it  after  his  death,  but  also  upon 
the  privilege  of  his  beneficiaries  to  succeed  to  the 
property  thus  dealt  with."  This  definition  is  compre- 
hensive, covering,  as  it  does,  both  the  right  to  transmit 
and  the  right  to  succeed.9 

Sometimes  the  inheritance  tax  is  denominated  an 
excise  or  duty  upon  the  right  or  privilege  of  taking 
property  by  will  or  descent,  in  contradistinction  to  a 
direct  tax  on  property.10  It  "is  not  a  tax  upon  prop- 
erty or  property  rights  in  any  sense,  but  purely  an 
excise  tax  levied  upon  the  transfer  or  transmission, 
and  merely  measured  in  amount  by  the  amount  of  the 
property  transferred. ' '  " 

The  Pennsylvania  court  has  spoken  of  the  inherit- 
ance tax  as  "a  diminution  of  the  amount  that  other- 
wise would  pass  under  the  will  or  other  conveyance." 
This  characterization  of  the  tax  was  made  in  a  case 
where  it  was  contended  that  a  bequest  to  charities  was 
exempt.  But,  to  quote  from  the  opinion  of  the  court, 
"there  is  no  kind  of  exception,  qualification,  condi- 
tion, or  reservation  as  to  what  it  is  that  is  the  subject 
of  the  tax.  It  is  the  whole  of  the  estate  that  passes. 
There  is  no  exemption  from  the  tax  in  favor  of  char- 

»  Attorney  General  T.  Stone  (Mass.),  95  N.  E.  395. 

10  Minot  v.  Winthrop,  162  Mass.  113,  26  L.  R.  A.  259,  38  N.  E.  512; 
State  v.  Hamlin,  86  Me.  495,  41  Am.  St.  Rep.  569,  25  L.  R.  A.  632, 
30  Atl.  76;  Estate  of  Keeney,  194  N.  Y.  281,  87  N.  E.  428;  Estate  of 
Stixrud,  58  Wash.  339,  Ann.  Gas.  1912A,  850,  33  L.  R.  A.,  N.  S.,  632, 
109  Pac.  343;  Knowlton  v.  Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20  Sup. 
Ct.  Rep.  747. 

"The  tax  is  not  one  of  the  expenses  of  administration,  or  a  charge 
upon  the  general  estate  of  the  decedent,  but  is  in  the  nature  of  an 
impost  tax  or  tax  upon  the  right  of  succession":  Estate  of  Chesney,  1 
Cal.  App.  30,  81  Pac.  679. 

11  Beals  v.  State,  139  Wis.  544,  121  N.  W.  347;   Estate  of  Bullen, 
143  Wia.  512,  139  Am.  St.  Rep.  1114,  128  N.  W.  109. 


8  INHERITANCE  TAXATION. 

ities.  That  which  the  legatee  gets  and  keeps  is  the 
aggregate  sum  bequeathed,  less  the  amount  of  the  tax. 
The  tax  must  be  retained  by  the  person  who  has  the 
decedent's  property  in  charge.  It  is  therefore  not  a 
tax  upon  the  property  or  money  bequeathed,  but  a 
diminution  of  the  amount  that  otherwise  would  pass 
under  the  will  or  other  conveyance,  and  hence  that 
which  the  legatee  really  receives  is  not  taxed  at  all.  It 
is  that  which  is  left  after  the  tax  has  been  taken  off. 
It  is  only  imposed  once,  and  that  is  before  the  legacy 
has  reached  the  legatee,  and  before  it  has  become  his 
property.  If  the  tax  were  a  continuing  charge  imposed 
year  by  year  after  the  ownership  of  the  legacy  has  be- 
come vested  in  the  legatee,  there  would  then  be  room 
for  the  claim  that  it  is  free  because  of  its  charitable 
character.  Being  held  for  charitable  purposes,  it 
would  come  within  the  description  of  property  ex- 
empted from  taxation  for  that  reason.  But  it  is  quite 
clear  that  it  cannot  have  the  benefit  of  that  privilege 
while  it  is  in  a  state  of  transition,  and  before  it  has 
become  ultimately  vested  in  the  possession  of  the 
owner. ' ' " 

And  the  Kentucky  court,  in  holding  that  it  is  not 
against  the  policy  of  the  law  to  enforce  the  inheritance 
tax  upon  a  fund  devised  to  a  public  school,  has  this 
to  say  relative  to  the  nature  of  the  tax:  "The  act 
authorizing  the  imposition  of  this  tax  makes  no  ex- 
emption in  favor  of  either  legatees  who  may  be 
indebted  to  the  estate,  or  charitable  or  religious  in- 
stitutions. The  tax  is  not  levied  upon  the  fund,  but 
upon  its  transmission,  and  hence  the  argument  that  it 
is  against  the  policy  of  the  law  to  levy  a  tax  upon  a 
fund  devised  to  a  public  school  has  no  bearing  upon 
the  case  at  bar,  for  the  reason  that  this  fund  does  not 
become  a  fund  devoted  to  the  maintenance  of  a  school 

«  Eetate  of  Finnen,  196  Pa.  72,  46  Atl.  269. 


NATURE,  BASIS,  AND  EXTENT  OP  TAX.  9 

until  the  law  relative  to  its  transmission  has  been 
complied  with.  The  tax  must  be  paid  before  the  fund 
in  question  can  become  the  property  of  the  school  or 
be  devoted  to  educational  purposes. ' ' 18 

"A  precise  definition  of  the  nature  of  this  tax,"  ob- 
serves the  New  York  court  of  appeals,  "is  not  essential, 
if  it  is  susceptible  of  exact  definition.  Thus  far,  in  this 
court,  we  have  not  thought  it  necessary,  in  the  cases 
coming  before  us,  to  determine  whether  the  object  of 
taxation  is  the  property  which  passes,  or  not ;  though, 
in  some,  expressions  may  be  found  which  seem  to  re- 
gard the  tax  in  that  light.  The  idea  of  this  succession 
tax,  as  we  may  conveniently  term  it,  is  more  or  less 
compound;  the  principal  idea  being  the  subjection  of 
property,  ownership  of  which  has  ceased  by  reason  of 
the  death  of  its  owner,  to  a  diminution,  by  the  state  re- 
serving to  itself  a  portion  of  its  amount,  if  in  money, 
or  of  its  appraised  value,  if  in  other  forms  of  prop- 
erty."18* 

§  7.  Basis  of  Right  of  State  Legislature  to  Impose 
Tax. — The  authority  of  the  legislatures  of  the  several 
states  of  the  Union  to  impose  an  inheritance  tax  has 
usually  been  based  on  the  power  to  regulate  the  trans- 
mission of  and  succession  to  the  property  of  deceased 
persons.  The  devolution  of  such  property,  or  the  suc- 
cession thereto,  is  by  permission  of  the  state.  Hence 
the  state  is  competent,  acting  within  reasonable 
bounds,  to  prescribe  such  regulations  and  attach  such 
conditions  in  granting  the  privilege  or  permission  as  it 
sees  fit,  whether  the  transmission  is  effected  by  testa- 
mentary act  of  the  owner  or  by  operation  of  law  in 
case  he  dies  intestate.  And  as  an  incident  to  such 

"  Leavell  v.  Arnold,  131  Ky.  426,  115  S.  W.  232. 

"•  Estate  of  Swift,  137  N.  Y.  77,  18  L.  B.  A.  709,  32  N.  E.  1096, 
quoted  in  Estate  of  Sanford,  126  Cal.  112,  45  L.  E.  A.  788,  54  Pac.  259, 
58  Pac.  462. 


10  INHERITANCE  TAXATION. 

regulation,  and  as  one  of  such  conditions,  the  legis- 
lature may  impose  an  inheritance  tax.14 

' '  The  principles  upon  which  the  tax  is  upheld, ' '  said 
the  supreme  court  of  California,  ''have  been  so  fully 

i«  People  T.  Griffith,  245  111.  532,  92  N.  E.  313;  Booth  v.  Common- 
wealth, 130  Ky.  88,  113  S.  W.  61;  Allen  v.  McElroy,  130  Ky.  Ill, 
113  S.  W.  66;  Union  Trust  Co.  v.  Durfee,  125  Mich.  487,  84  N.  W. 
1101;  Gelsthorpe  v.  Furnell,  20  Mont.  299,  39  L.  E.  A.  170,  51  Pac.  267; 
Plummer  v.  Coler,  178  U.  S.  115,  44  L.  Ed.  998,  20  Sup.  Ct.  Kep.  829. 

"Upon  general  principles,  the  right  to  tax  the  succession  or  inherit- 
ance of  property  is  founded  on  a  reasonable  basis,  since  the  right 
of  any  person  to  succeed  to  property  of  a  deceased  person,  whether 

by  will  or  inheritance,  is  a  creature  of  statute  law As  the  right 

to  succeed  depends  upon  the  law  of  the  state,  it  follows  that  the  state 
may  regulate  that  right  as  public  necessity  or  policy  may  dictate,  and 
may  subject  it  to  such  burdens  and  reasonable  conditions  as  may  best 
subserve  the  purposes  of  the  state.  It  must  be  borne  in  mind  that 
the  tax  io  not  upon  the  property,  but  the  right  or  privilege  of  acquir- 
ing it  by  succession":  State  v.  Alston,  94  Tenn.  674,  28  L.  E.  A.  178, 
30  S.  W.  750. 

The  legal  basis  for  inheritance  taxes  is  stated  in  United  States  v. 
Perkins,  163  U.  S.  625,  41  L.  Ed.  287,  16  Sup.  Ct.  Eep.  1073,  as  follows: 
"Though  the  general  consent  of  the  most  enlightened  nations  has  from 
the  earliest  historical  period  recognized  a  natural  right  in  children 
to  inherit  the  property  of  their  parents,  we  know  of  no  legal  principle 
to  prevent  the  legislature  from  taking  away  or  limiting  the  right  of 
testamentary  disposition  or  imposing  such  conditions  upon  its  exercise 
as  it  may  deem  conducive  to  public  good.  In  this  view,  the  so-called 
inheritance  tax  of  the  state  of  New  York  is  in  reality  a  limitation 
upon  the  power  of  a  testator  to  bequeath  his  property  to  whom  he 
pleases — a  declaration  that,  in  the  exercise  of  that  power,  he  shall 
contribute  a  certain  percentage  to  the  public  use.  In  other  words,  that 
the  right  to  dispose  of  his  property  by  will  shall  remain,  but  subject 
to  a  condition  that  the  state  has  a  right  to  impose.  Certainly,  if  it 
be  true  that  the  right  of  testamentary  disposition  is  purely  statutory, 
the  state  has  a  right  to  require  a  contribution  to  the  public  treasury 
before  the  bequest  shall  take  effect.  Thus  the  tax  is  not  upon  the 
property,  in  the  ordinary  sense  of  the  term,  but  upon  the  right  to 
dispose  of  it,  and  it  is  not  until  it  has  yielded  its  contribution  to  the 
state  that  it  becomes  the  property  of  the  legatee.  This  was  the  view 
taken  of  a  similar  tax  by  the  court  of  appeals  of  Maryland  in  State 
v.  Dalrymple,  70  Md.  294,  299,  3  L.  E.  A.  372,  17  Atl.  82,  in  which 
the  court  observed:  'Possessing,  then,  the  plenary  power  indicated,  it 
necessarily  follows  that  the  state  in  allowing  property  ....  to  be  dis- 
posed of  by  will,  and  in  designating  who  shall  take  such  property  when 


and  clearly  elaborated  that  it  is  necessary  to  do  no 
more  than  to  refer  to  the  cases.  The  right  of  inherit- 
ance, including  the  designation  of  heirs  and  the  pro- 
portions which  the  several  heirs  shall  receive,  as  well 
as  the  right  of  testamentary  disposition,  are  entirely 
matters  of  statutory  enactment,  and  within  the  con- 
trol of  the  legislature.  As  it  is  only  by  virtue  of  the 
statute  that  the  heir  is  entitled  to  receive  any  of  his 
ancestor's  estate,  or  that  the  ancestor  can  divert  his 
estate  from  the  heir,  the  same  authority  which  confers 
this  privilege  may  attach  to  it  the  condition  that  a  por- 
tion of  the  estate  so  received  shall  be  contributed  to 
the  state,  and  the  portion  thus  to  be  contributed  is 
peculiarly  within  the  legislative  discretion. ' '  " 

The  majority  of  the  courts  go  so  far  as  to  declare 
that  the  right  to  transmit  or  receive  property  by  will 
or  descent  is  a  mere  creature  of  statute,  a  privilege 
existing  purely  by  grace  of  the  legislature,  and  as  the 
legislature  may  withhold  the  privilege  or  confer  it  at 
pleasure,  it  may  impose  any  condition  upon  the  enjoy- 
there  is  no  will,  may  prescribe  such  conditions,  not  in  conflict  with 
or  forbidden  by  the  organic  law,  as  the  legislature  may  deem  expedient. 
These  conditions,  subject  to  the  limitation  named,  are  consequently 
wholly  within  the  discretion  of  the  general  assembly.  The  act  we  are 
now  considering  plainly  intended  to  require  that  a  person  taking  the 
benefit  of  a  civil  right  secured  to  him  under  our  laws  should  pay  a 
certain  premium  for  its  enjoyment.  In  other  words,  one  of  the  con- 
ditions upon  which  strangers  and  collateral  kindred  may  acquire  a 
decedent's  property,  which  is  subject  to  the  dominion,  of  our  laws,  is 
that  there  shall  be  paid  out  of  such  property  a  tax  of  two  and  one-half 
per  cent  into  the  treasury  of  the  state.  This,  therefore,  is  not  a  tax 
upon  the  property  itself,  but  is  merely  the  price  exacted  by  the  state 
for  the  privilege  accorded  in  permitting  property  so  situated  to  bfl 
transferred  by  will  or  by  descent  or  distribution.' " 

This  extract  from  United  States  v.  Perkins,  163  U.  S.  625,  41  L.  Ed. 
287,  16  Sup.  Ct.  Rep.  1073,  is  quoted  with  approval  in  Estate  of  Stix- 
rud,  58  Wash.  339,  Ann.  Cas.  1912A,  850,  33  L.  B.  A.,  N.  S.,  632,  109 
Pac.  343. 

«  Estate  of  Wilmerding,  117  Gal.  281,  49  Pac.  181;  Estate  of  Stan- 
ford, 126  Cal.  112,  45  L.  R.  A.  788,  58  Pac.  462. 


12  INHERITANCE  TAXATION. 

ment  thereof  which  it  sees  fit,  such  as  a  tax.  Carried 
to  its  ultimate  conclusion  this  reasoning  would  permit 
the  legislature  to  confiscate  the  estates  of  decedents,  by 
the  imposition  of  an  excessive  tax,  and  some  of  the 
courts  have  thus  unequivocally  declared.18  But  the 
soundness  of  such  a  theory  may  well  be  deemed  doubt- 
ful.16* 

There  is  no  doubt  that  the  right  of  testamentary  gift 
is  subject  to  such  reasonable  regulations  and  restric- 
tions in  respect  to  the  form  and  substance  of  the  tes- 
tamentary instrument,  the  manner  of  its  execution  and 
revocation,  the  competency  of  the  maker  to  give  and 
the  eligibility  of  the  beneficiaries  to  receive,  as  the 
legislature  deems  expedient  to  adopt;  but  to  suppose 
that  a  right  so  long  and  universally  recognized  as  it 
has  been  rests  entirely  upon  legislative  enactment,  and 
can  be  absolutely  denied  at  the  pleasure  of  the  legis- 

i«  Pullen  v.  Wake  County,  66  N.  C.  361;  Eyre  v.  Jacob,  14  Gratt. 
422,  73  Am.  Dec.  367. 

ia»  "The  descent  or  devolution  of  property,"  says  Justice  Field,  "on 
the  death  of  the  owner  in  England  and  in  this  country  has  always  been 
regulated  by  law.  We  have  no  occasion  in  these  cases  to  consider 
whether  the  legislature  has  the  power  to  make  the  commonwealth  the 
universal  legatee  or  successor  of  all  the  property  of  all  its  inhabitants 
when  they  die,  for  the  purposes,  not  only  of  paying  the  public  charges, 
but  also  of  distributing  the  property  according  to  its  will  among  the 
living  inhabitants,  or  for  the  purpose  of  abolishing  private  property 
altogether.  We  assume  that  under  the  constitution  this  cannot  be 
done,  either  directly  or  indirectly;  that  the  legislature  cannot  so  far 
restrict  the  right  to  transmit  property  by  will  or  by  descent  as  to 
amount  to  an  appropriation  of  property  generally;  that  it  cannot  im- 
pose a  tax  which  shall  be  equivalent  or  almost  equivalent  to  the  value 
of  the  property,  and  cannot  so  limit  the  persons  who  can  take  as  heirs, 
devisees,  distributees,  or  legatees  that  the  great  mass  of  all  the  prop- 
erty of  the  inhabitants  must  become  vested  in  the  commonwealth  by 
escheat.  The  state  can  take  property  by  taxation  only  for  the  public 
service,  and  we  assume  that  its  right  to  take  property,  if  any  exists, 
by  regulating  the  distribution  of  it  on  the  death  of  the  owner,  is 
limited  in  the  same  manner,  and  that  this  right  must  be  exercised  in 
a  reasonable  way";  Minot  v.  Winthrop,  162  Mass.  113,  26  L.  B.  A.  259, 
88  N.  E.  512. 


NATURE,  BASIS,  AND  EXTENT  OP  TAX.  13 

lature,  is  to  misinterpret  the  law  and  ignore  one  of  the 
most  cherished  of  property  rights." 

While  the  legislature  is  undoubtedly  competent  to 
change  the  rule  of  inheritance,  or  provide  that  heirs 
shall  take  subject  to  such  burdens  as  the  payment  of 
debts,  or  make  the  deprivation  of  the  right  to  inherit 
a  portion  of  the  penalty  imposed  for  the  commission  of 
a  crime,  or  attach  to  the  privilege  the  condition  that 
a  part  of  the  property  shall  be  contributed  to  the  state 
in  the  form  of  an  inheritance  tax,18  it  certainly  is  not 
so  free  from  doubt  as  the  unanimity  of  the  decisions 
would  seem  to  indicate  that  the  state  may  appropriate 
all  of  the  estate  of  deceased  persons  by  abolishing  laws 
of  inheritance  and  devise.  Said  Justice  Winslow  in 
the  case  of  Nunnemacher  v.  State:19  ''But,  while  we 
utterly  reject  the  doctrine  of  Eyre  v.  Jacob,20  and  hold 
that  the  right  to  demand  that  property  pass  by  inher- 
itance or  will  is  an  inherent  right  subject  only  to 
reasonable  regulation  by  the  legislature,  we  are  not 
thereby  brought  to  the  conclusion  that  inheritance  or 
succession  taxes  cannot  be  levied.  They  do  not  de- 
pend upon  the  right  to  confiscate.  We  agree  entirely 
with  the  ideas  expressed  by  the  supreme  court  of 
Massachusetts  in  Minot  v.  Winthrop,21  where  it  is  said : 
'We  assume  that,  under  the  constitution,  this  (i.  e.,  the 
taking  of  all  property  by  the  state  on  the  death  of 
the  owner)  cannot  be  done  either  directly  or  indirectly; 
that  the  legislature  cannot  so  far  restrict  the  right  to 
transmit  property  by  will  or  by  descent  as  to  amount 
to  an  appropriation  of  property  generally;  that  it  can- 

IT  1  Boss  on  Probate  Law  and  Practice,  14;  Nunnemacher  T.  State, 
129  Wis.  190,  9  Ann.  Cas.  711,  9  L.  B.  A.,  N.  S.,  121,  108  N.  W.  627. 

is  1  Ross  on  Probate  Law  and  Practice,  122 ;  Estate  of  Wilmerding, 
117  Cal  281,  49  Pac.  181;  Estate  of  Tuohy,  35  Mont.  431,  90  Pac.  170. 

i»  Nunnemacher  v.  State,  129  Wis.  190,  9  Ann.  Cas.  711,  9  L.  E.  A., 
N.  S.,  121,  108  N.  W.  627. 

20  Eyre  v.  Jacob,  14  Gratt.  422,  73  Am.  Dec.  367. 

*i  Minot  v.  Winthrop,  162  Mass.  113,  26  L.  B.  A.  259,  38  N.  E.  512. 


14  INHERITANCE  TAXATION. 

not  impose  a  tax  which  shall  be  equivalent,  or  almost 
equivalent,  to  the  value  of  the  property,  and  cannot  so 
limit  the  persons  who  can  take  as  heirs,  devisees,  dis- 
tributees, or  legatees  that  the  great  mass  of  all  the 
property  of  the  inhabitants  must  become  vested  in  the 
commonwealth  by  escheat.  The  state  can  take  prop- 
erty by  taxation  only  for  the  public  service,  and  we 
assume  that  its  right  to  take  property,  if  any  exists, 
by  regulating  the  distribution  of  it  on  the  death  of  the 
owner  is  limited  in  the  same  manner,  and  that  this 
right  must  be  exercised  in  a  reasonable  way.'  .  .  .  . 
No  one  doubts  for  a  moment  that  a  government  may 
levy  a  tax  upon  transfers  of  land  or  upon  business 
transactions;  it  is  done  by  the  federal  government  in 
this  country  whenever  additional  and  extraordinary 
revenues  are  needed,  in  the  form  of  stamp  duties. 
These  taxes  are  not  based  upon  the  power  to  interdict 
or  prohibit  such  transactions,  but  upon  the  power  to 
reasonably  regulate  and  tax  them.  Succession  or  in- 
heritance taxes  may  well  be  sustained  upon  the  same 
principle;  not  upon  the  power  to  prohibit,  but  upon 
the  power  to  reasonably  regulate  and  tax." 

And  Justice  Marshall,  referring  to  the  doctrine  that 
the  right  to  transmit  or  receive  property  by  will  or 
descent  may  be  abolished  at  the  pleasure  of  the  legis- 
lature, observed:  "True,  it  has  been  affirmed  over  and 
over  again  by  judges  and  courts  of  the  highest  re- 
spectability. Eminent  jurists  whose  names  are  written 
high  in  the  temple  of  judicial  fame  have  stood  sponsors 
for  it.  But  the  greatest  errors  of  the  past  have  had 
the  most  distinguished  supporters.  If  it  were  true  that 
error  could  be  sanctified  by  mere  weight  of  the  number 
or  ability  of  its  advocates,  and  be  given  the  character 
of  infallible  truth  by  the  mere  force  of  repetition,  then 
the  error  that  the  constitutional  guaranties  do  not 
reach  the  subject  we  are  considering  would  have  long 
ago  taken  such  deep  root  that  the  most  courageous 


NATURE,  BASIS,  AND  EXTENT  OP  TAX.  15 

could  not  have  hoped  to  dislodge  it.  But  such,  as 
experience  shows,  is  not  the  case.  Error,  though  often 
repeated,  is  error  still,  and,  because  it  is  error,  it  is 
mortal,  and  must  be  swallowed  up  by  immortality. ' ' " 

§  8.  Basis  of  Right  of  Congress  to  Impose  Tax. — 
If  an  inheritance  tax  is  regarded  as  a  charge  on  the 
transmission  and  not  on  the  property  itself,  and  the  au- 
thority to  impose  it  is  based  on  the  power  to  regulate 
the  transmission  of  property  of  deceased  persons,  the 
question  arises  whether  Congress,  which  has  no  au- 
thority over  the  devolution  of  property  in  the  several 
states,  is  competent  to  impose  an  inheritance  tax. 
This  question,  when  argued  before  the  supreme  court 
of  the  United  States,  in  Knowlton  v.  Moore,28  was 
answered  in  this  language:  "Can  the  Congress  of  the 
United  States  levy  a  tax  of  that  character?  The  prop- 
osition that  it  cannot  rests  upon  the  assumption  that, 
since  the  transmission  of  property  by  death  is  exclu- 
sively subject  to  the  regulating  authority  of  the  sev- 
eral states,  therefore  the  levy  by  Congress  of  a  tax  on 
inheritances  or  legacies,  in  any  form,  is  beyond  the 
power  of  Congress,  and  is  an  interference  by  the 
national  government  with  a  matter  which  falls  alone 
within  the  reach  of  state  legislation The  fal- 
lacy which  underlies  the  proposition  contended  for  is 
the  assumption  that  the  tax  on  the  transmission  or  re- 
ceipt of  property  occasioned  by  death  is  imposed  on 
the  exclusive  power  of  the  state  to  regulate  the  devolu- 
tion of  property  upon  death.  The  thing  forming  the 
universal  subject  of  taxation  upon  which  inheritance 
and  legacy  taxes  rest  is  the  transmission  or  receipt,  and 
not  the  right  existing  to  regulate.  In  legal  effect, 

22  Nunnemacher  v.  State,  129  Wis.  190,  9  Ann.  Gas.  711,  9  L.  E.  A., 
N.  S.,  121,  108  N.  W.  627. 

23  Knowlton  v.  Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20  Sup.  Ct.  Kep. 
747. 


16  INHERITANCE  TAXATION. 

then,  the  proposition  upon  which  the  argument  rests 
is  that  wherever  a  right  is  subject  to  exclusive  regula- 
tion, by  either  the  government  of  the  United  States, 
on  the  one  hand,  or  the  several  states  on  the  other, 
the  exercise  of  such  rights  as  regulated  can  alone  be 
taxed  by  the  government  having  the  mission  to  regu- 
late. But  when  it  is  accurately  stated,  the  proposition 
denies  the  authority  of  the  states  to  tax  objects  which 
are  confessedly  within  the  reach  of  their  taxing  power, 
and  also  excludes  the  national  government  from  almost 
every  subject  of  direct  and  many  acknowledged  objects 

of  indirect  taxation It  cannot  be  doubted  that 

the  argument,  when  reduced  to  its  essence,  demon- 
strates its  own  unsoundness,  since  it  leads  to  the 
necessary  conclusion  that  both  the  national  and  state 
governments  are  devested  of  those  powers  of  taxation 
which  from  the  foundation  of  the  government  admit- 
tedly have  belonged  to  them.  Certainly,  a  tax  placed 
upon  an  inheritance  or  legacy  diminishes,  to  the  ex- 
tent of  the  tax,  the  value  of  the  right  to  inherit  or 
receive,  but  this  is  a  burden  cast  upon  the  recipient 

and  not  upon  the  power  of  the  state  to  regulate 

Under  our  constitution  system  both  the  national  and 
the  state  governments,  moving  in  their  respective 
orbits,  have  a  common  authority  to  tax  many  and 
diverse  objects,  but  this  does  not  cause  the  exercise  of 
its  lawful  attributes  by  one  to  be  a  curtailment  of  the 
powers  of  government  of  the  other,  for  if  it  did  there 
would  practically  be  an  end  of  the  dual  system  of  gov- 
ernment which  the  constitution  established. ' ' 

This  case  of  Knowlton  v.  Moore  may  be  regarded  as 
definitely  establishing  the  doctrine  in  the  federal  courts 
that  the  power  to  impose  inheritance  taxes  does  not 
arise  solely  from  the  power  to  regulate  the  devolution 
of  the  property,  but  rather  "from  the  general  author- 
ity to  impose  taxes  upon  all  property  within  the  juris- 
diction of  the  taxing  power.  It  has  usually  happened 


NATURE,  BASIS,  AND  EXTENT  OF  TAX.  17 

that  the  power  has  been  exercised  by  the  same  govern- 
ment which  regulates  the  succession  to  the  property 
taxed;  but  this  power  is  not  destroyed  by  the  dual 
character  of  our  government,  or  by  the  fact  that,  under 
our  constitution,  the  devolution  of  property  is  deter- 
mined by  the  laws  of  the  several  states. ' ' 2*  But  Jus- 
tice Holmes,  in  his  dissenting  opinion  to  Chanler  v. 
Kelsey,25  says:  "I  always  have  believed  that  a  state 
inheritance  tax  was  an  exercise  of  the  power  of  regu- 
lating the  devolution  of  property  by  inheritance  or  will 
upon  the  death  of  the  owner — a  power  which  belongs 
to  the  states;  and  I  have  been  fortified  in  my  belief 
by  the  utterances  of  this  court  from  the  time  of  Chief 
Justice  Taney  to  the  present  day.  For  that  reason 
the  power  is  more  unlimited  than  the  power  of  a  state 
to  tax  transfers  generally,  or  the  power  of  the  United 
States  to  levy  an  inheritance  tax.  The  distinction 
between  state  and  United  States  inheritance  taxes  was 
recognized  in  Knowlton  v.  Moore ; 26  and  whatever  may 
be  thought  of  the  decision  in  Snyder  v.  Bettman,27  I 
do  not  understand  it  to  import  a  denial  of  the  dis- 
tinction reaffirmed  by  the  dissenting  members  of  the 
court. " 

§  9.  Origin  and  Extent  of  Inheritance  Taxation. — 
Inheritance  taxes  are  of  ancient  origin.  Two  thousand 
years  ago  they  were  imposed  in  Rome,  the  idea  perhaps 
having  been  introduced  from  Egypt;  and  in  the  Middle 
Ages  traces  of  such  taxes  were  observable  as  an  inci- 
dent of  feudal  tenures.  To-day  England,  France,  Ger- 

24  Snyder  v.  Bettman,  190  U.  S.  249,  47  L.  Ed.  1035,  23  Sup.  Ct.  Eep. 
803. 

2«  Chanler  v.  Kelsey,  205  U.  S.  466,  51  L.  Ed.  882,  27  Sup.  Ct.  Eep. 
550. 

28  Knowlton  v.  Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20  Sup.  Ct. 
Eep.  747. 

27  Snyder  v.  Bettman,  190  U.  S.  249,  47  L.  Ed.  1035,  23  Sup.  Ct.  Eep. 
803. 

9 


18  INHERITANCE  TAXATION. 

many — in  fact,  practically  all  the  nations  of  Europe — 
have  adopted  some  system  of  inheritance  taxation;  so, 
indeed,  have  many  of  the  colonies  of  Great  Britain,  the 
Spanish-American  countries,  Japan,  and  other  nations 
of  the  world.  In  the  United  States,  before  the  end  of 
the  eighteenth  century,  the  federal  government  began 
the  taxation  of  inheritances.  The  first  tax  of  this 
nature  was  imposed  by  the  stamp  act  of  July  6,  1797, 
which  was  repealed  five  years  later.  The  next  tax 
was  imposed  by  the  war  revenue  act  of  July  1,  1862, 
amended  two  years  later,  and  repealed  July  14,  1870. 
The  income  tax  provisions  of  the  revenue  act  of  August 
27,  1894,  embraced  inheritances,  but  the  scheme  being 
indivisible,  the  inheritance  tax  fell  when  the  income  tax 
was  declared  unconstitutional.  The  next  and  last  in- 
heritance tax  imposed  by  Congress  was  by  the  war 
revenue  act  of  June  13,  1898,  which,  so  far  as  the 
imposition  of  taxes  on  inheritances  is  concerned, 
was  repealed  April  12,  1902.28 

Pennsylvania,  Virginia,  Louisiana,  Maryland,  and 
North  Carolina  adopted  inheritance  taxes  at  quite  an 
early  date.  Other  states,  from  time  to  time,  have 
also  resorted  to  the  taxation  of  inheritances,  and  this 
system  of  raising  revenue  has  increased  in  favor,  es- 
pecially in  the  past  few  years,  until  the  following 
states  have  an  inheritance  tax:  Arkansas,  California, 
Colorado,  Connecticut,  Delaware,  Idaho,  Illinois,  Iowa, 
Kansas,  Kentucky,  Louisiana,  Maine,  Maryland,  Mas- 
sachusetts, Michigan,  Minnesota,  Missouri,  Montana, 
Nebraska,  New  Hampshire,  New  Jersey,  New  York, 
North  Carolina,  North  Dakota,  Ohio,  Oklahoma,  Ore- 
gon, Pennsylvania,  South  Dakota,  Tennessee,  Texas, 

28  Matter  of  McPherson,  104  N.  Y.  306,  58  Am.  Rep.  502,  10  N.  E. 
685;  Estate  of  Morris,  138  N.  C.  259,  50  S.  E.  682;  State  v.  Alston, 
*94  Tenn.  674,  28  L.  E.  A.  178,  30  S.  W.  750;  Pollock  v.  Fanners'  Loan 
etc.  Co.,  158  U.  S.  601,  39  L.  Ed.  1108,  15  Sup.  Ct.  Rep.  912;  Knowlton  v. 
Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20  Sup.  Ct.  Rep.  747. 


NATURE,  BASIS,  AND  EXTENT  OF  TAX.  19 

Utah,  Vermont,  Virginia,  Washington,  West  Virginia, 
Wisconsin,  and  Wyoming.  Hawaii  and  Porto  Rico 
have  also  adopted  a  system  of  inheritance  taxation.29 

§  10.  Important  Features  of  Inheritance  Taxation. 
Some  of  the  leading  features  of  inheritance  tax  laws, 
at  least  of  those  recently  adopted,  are  the  exemption 
of  estates  of  limited  value;  the  exemption  of  gifts  to 
charities;  the  exemption  of  gifts  to  lineal  descendants, 
or  the  imposition  on  them  of  lower  rates  than  on  col- 
lateral relatives  or  strangers;  and  the  graduation  of 
the  tax  according  to  the  value  of  estates  or  to  the 
degree  of  relationship  between  donor  and  donee. 
Some  statutes  apply  only  to  collateral  relatives  and 
strangers,  exempting  lineal  descendants  and  the  sur- 
viving husband  or  wife,  but  the  modern  tendency  has 
been  to  tax  all  transmissions,  whether  to  lineals  or 
collaterals.  This  is  illustrated  by  the  California  stat- 
ute, which,  when  first  enacted  in  1893,  imposed  a  col- 
lateral tax  only,  but  which,  as  amended  in  1905,  applies 
to  lineal  descendants  as  well  as  to  collateral  relatives. 
An  even  more  significant  tendency  appears  in  the 
adoption  of  progressive  rates,  whereby  the  rate  of 
taxation  is  made  to  increase  with  the  value  of  the  es- 
tate, or  with  the  remoteness  of  the  relationship  be- 
tween the  parties,  or  with  both.  Here  is  suggested  an 
efficient  means  of  limiting  the  size  of  inheritable  es- 
tates and  thereby  reducing  swollen  fortunes  without 
resorting  to  confiscatory  measures  or  offending  con- 
stitutional principles. 

2»  Dixon  v.  Ri«ketts,  26  Utah,  215,  72  Pac.  947;  Knowlton  T.  Moore, 
178  U.  S.  41,  44  L.  Ed.  969,  20  Sup.  Ct.  Eep.  747. 


20  INHERITANCE  TAXATION. 


CHAPTER  H. 
CONSTITUTIONALITY  OF  STATUTES. 

§  14.  Constitutionality  in  General. 

§  15.  Express  Constitutional  Provisions. 

§  16.  Constitutionality  of  Federal  Tax. 

§  17.  Constitutionality  of  Municipal  Ordinance. 

§  18.  Unconstitutionality  of  Certain  Statutes. 

§  19.  Eule  of  Uniformity  and  Equality. 

§  20.  Guaranty  of  Equal  Protection. 

§  21.  Discrimination  Between  Relatives. 

§  22.  Discrimination  Against  Nonresidents. 

§  23.  Discrimination  Against  Aliens. 

§  24.  Exemption  of  Estates  of  Limited  Value. 

§  25.  Exemption  of  Charities. 

§  26.  Progressive  Rate  of  Taxation. 

§  27.  Double  Taxation  in  Case  of  Nonresidence. 

§  28.  Detention  of  Property  in  Safe  Deposit. 

§  14.  Constitutionality  in  General. — The  constitu- 
tionality of  the  general  principles  of  inheritance  taxa- 
tion has  been  affirmed  by  a  multitude  of  decisions,  so 
that  the  competency  of  Congress,  or  the  legislatures  of 
the  several  states,  to  impose  an  inheritance  tax  is  uni- 
versally conceded.  The  inherent  justice  and  whole- 
someness  of  this  system  of  taxation  have  so  appealed 
to  the  judicial  mind  that  all  the  assaults  that  wealth, 
in  its  aversion  to  bear  its  just  burdens,  has  conceived, 
have  proved  unavailing.  The  general  doctrine  that 
a  state  or  the  United  States  may  raise  revenue,  and  in 
bountiful  quantities,  by  levying  tribute  upon  estates 
in  the  course  of  transmission  from  decedents  to  their 
successors,  is  no  longer  doubted,  and  most  of  the  at- 
tacks now  made  upon  inheritance  taxation  are  upon 
other  than  constitutional  grounds.1 

i  Walker  v.  People,  192  HI.  106,  61  N.  E.  489;  Tyson  v.  State, 
28  Md.  577 ;  State  v.  Henderson,  160  Mo.  190,  60  S.  W.  1093 ;  Pullen  v. 
Wake  County  Commrs.,  66  N.  C.  361;  State  v.  Guilbert,  70  Ohio  St.  229, 
1  Ann.  Cas.  25,  71  N.  E.  636;  Eyre  v.  Jacob,  14  Gratt.  (Va.)  422,  73  Am. 


CONSTITUTIONALITY   OF  STATUTES.  21 

No  express  constitutional  authority  is  requisite  in 
order  to  empower  a  state  legislature  to  lay  an  inherit- 
ance tax.  The  power  to  tax  is  an  inherent  incident 
of  the  power  to  legislate,  and  it  is  necessary,  so  far  as 
concerns  the  authority  of  the  legislature  to  impose 
inheritance  taxes,  only  that  the  constitution  does  not, 
either  expressly  or  by  necessary  implication,  prohibit 
such  taxation;  and  the  enumeration  in  the  constitu- 
tion of  certain  subjects  of  taxation  should  not  be  con- 
strued as  such  a  prohibition.  This  is  obvious  in  view 
of  the  familiar  principle  that  constitutions  are  not,  as 
to  the  several  commonwealths  of  the  Union,  grants 
of  power,  but  restrictions  upon  powers  otherwise  un- 
limited, and  the  law-making  branch  of  a  state  govern- 
ment may  legislate  on  any  subject  and  enact  any  law 
not  inhibited  by  the  constitution  of  the  state  or  of  the 
United  States.2 

Dec.  367;  Magoun  v.  Illinois  Trust  etc.  Bank,  170  U.  S.  283,  42  L.  Ed. 
1037,  18  Sup.  Ct.  Hep.  594;  Knowlton  v.  Moore,  178  U.  S.  41,  44  L.  Ed. 
969,  20  Sup.  Ct.  Eep.  747. 

"We  entertain  no  doubt,"  says  the  New  York  court  of  appeals,  "that 
such  a  tax  can  be  constitutionally  imposed.  The  power  of  the  legislature 
over  the  subject  of  taxation,  except  as  limited  by  constitutional  restric- 
tion, is  unbounded.  It  is  for  that  body,  in  the  exercise  of  its  discretion, 
to  select  the  objects  of  taxation.  It  may  impose  all  the  taxes  upon  lands, 
or  all  upon  personal  property,  or  all  upon  houses  or  upon  incomes.  It 
may  raise  revenue  by  capitation  taxes,  by  special  taxes  upon  carriages, 
horses,  dogs,  franchises  and  upon  every  species  of  property,  and  upon  all 
kinds  of  business  and  trades":  Estate  of  McPherson,  104  N.  Y.  306,  58 
Am.  Rep.  502,  10  N.  E.  685. 

2  Estate  of  Booth  v.  Commonwealth,  130  Ky.  88,  33  L.  R.  A.,  N.  S., 
592,  113  S.  W.  61;  Garth  v.  Switzler,  143  Mo.  287,  60  Am.  St.  Rep.  653, 
40  L.  R.  A.  280,  45  S.  W.  245 ;  State  v.  Vinsonhaler,  74  Neb.  675,  105  N. 
W.  472;  State  v.  Vinsonhaler  (Neb.),  133  N.  W.  472;  State  v.  Clark,  30 
Wash.  439,  71  Pac.  20. 

A  constitutional  provision  that  taxes  shall  be  levied  on  such  property 
as  the  legislature  shall  prescribe  does  not,  by  the  rule  of  exclusion,  pre- 
vent a  tax  on  privileges — at  least  where  the  constitutional  debates 
indicate  that  it  was  not  intended  to  deal  with  the  taxation  of  privileges, 
and  the  practical  construction  for  many  years  has  assumed  that  it  did 
not:  Nunnemacher  v.  State,  129  Wis.  190,  9  Ann.  Cas.  711,  9  L.  B.  A., 
N.  S.,  121,  108  N.  W.  627. 


22  INHERITANCE  TAXATION. 

§  15.  Express  Constitutional  Provisions. — An  act 
taxing  inheritances  and  testamentary  gifts  in  certain 
cases  does  not  change  the  law  of  descent,  which  the 
constitution  provides  shall  not  be  done  by  special  law.3 
Such  an  act  is  essentially  and  avowedly  a  tax  law, 
and  has  none  of  the  features  of  an  intestate  law  or 
of  an  act  regulating  the  disposition  of  property  by 
will.* 

A  statute  taxing  inheritances  does  not  deprive  of 
property  without  due  process  in  that  it  declares  the 
right  of  the  state  to  its  portion  of  the  inheritance  is 
vested  on  the  death  of  the  owner,  where  the  statute 
provides  a  means  of  ascertaining  the  amount  of  the 
tax  and  for  notice  and  appraisement.5 

An  excise  upon  the  right  to  receive  property  by 
devise  or  inheritance  is  a  tax  within  the  meaning  of 
the  constitutional  provisions  that  taxes  shall  be  levied 
for  public  purposes  only.6  But  since  an  inheritance 
tax  is  imposed  upon  the  succession  rather  than  upon 
the  property  itself,  it  has  been  held  not  to  contravene 
a  constitutional  limitation  upon  the  rate  of  taxation 
of  property  for  state  purposes.7 

The  provision,  found  in  some  constitutions,  that 
every  law  imposing  a  tax  "shall  distinctly  state  the 
tax  and  the  object  to  which  it  is  to  be  applied,"  has 
no  application  to  inheritance  taxes.  It  applies  to  the 
annual  recurring  taxes  imposed  generally  upon  the 
entire  property  of  the  state.  The  inheritance  tax  is  of 
a  permanent  nature.  It  is  always  uncertain  upon 
whom  it  will  fall  and  how  much  revenue  it  will  pro- 

»  Estate  of  Magnes,  32  Colo.  527,  77  Pac.  853. 

*  Estate  of  Cope,  191  Pa.  1,  71  Am.  St.  Eep.  749,  45  L.  R.  A.  316,  43 
Atl.  79. 

«  Trippet  v.  State,  149  Gal.  521,  8  L.  E.  A.,  N.  S.,  1210,  86  Pac.  1084. 

«  State  v.  Switzler,  143  Mo.  287,  65  Am.  St.  Eep.  653,  40  L.  E.  A.  280, 
45  S.  W.  245. 

i  Estate  of  Magnes,  32  Colo.  527,  77  Pac.  853. 


CONSTITUTIONALITY  OP  STATUTES.  23 

duce.  It  would  be  impossible  for  the  legislature,  per- 
haps years  in  advance,  to  specify  the  particular  ob- 
jects to  which  the  tax  should  be  applied.8 

§  16.  Constitutionality  of  Federal  Tax.— The  au- 
thority of  a  state  legislature  to  impose  inheritance 
taxes  cannot  be  doubted,  unless  limited  by  the  state  or 
United  States  constitution,  for  it  is  a  familiar  prin- 
ciple that  state  legislatures  have  plenary  power  in 
matters  legislative  save  as  restricted  by  the  organic 
law;  but  the  authority  of  Congress  to  impose  such 
taxes  has  been  questioned,  not  only  because  the 
United  States  is  a  government  of  granted  powers 
only,  but  because  of  the  peculiar  provisions  regarding 
taxation  in  the  national  constitution.  This  instru- 
ment divides  federal  taxes  into  two  classes,  direct  and 
indirect,  and  declares  that  direct  taxes  shall  be  "  ap- 
portioned," and  that  indirect  taxes  shall  be  "uni- 
form." It  has  been  decided  that  inheritance  taxes 
are  not  direct,  but  indirect,  taxes  in  the  nature  of 
duties  or  excises,  and  therefore  the  constitutional  rule 
of  "apportionment"  has  no  application  to  them.  It 
has  further  been  decided  that  inheritance  taxes,  not- 
withstanding their  peculiar  features  in  the  matter  of 
progressive  rates  and  discrimination  between  prop- 
erties of  different  values  and  persons  of  different  de- 
grees of  relationship,  are  "uniform,"  and  do  not  of- 
fend the  constitutional  rule  of  uniformity  nor  the 
fundamental  principles  of  equality  and  justice.  It 
has  been  argued,  however,  that  the  authority  to  lay 
an  inheritance  tax  arises  solely  from  the  power  to 
regulate  the  transmission  of  property  of  decedents,  a 
function  exclusively  within  the  dominion  of  the  sev- 
eral states;  and  no  doubt  the  utterances  of  many 

•  Union  Trust  Co.  v.  Durfee,  125  Mich.  487,  84  N.  W.  1101;  Estate  of 
McPherson,  104  N.  Y.  315,  58  Am.  Rep.  502,  10  N.  E.  685;  Estate  of 
McKennan,  25  S.  D.  369,  126  N.  W.  611,  130  N.  W.  33. 


24  INHERITANCE  TAXATION. 

courts  lend  themselves  to  such  an  interpretation.  But 
the  supreme  court  of  the  United  States  has  placed  the 
power  to  lay  such  a  tax  on  the  broader  ground  that  it 
does  not  arise  solely  from  the  right  to  regulate  the 
transmission  of  property,  but  from  the  general  author- 
ity to  impose  tax  upon  all  objects  within  the  jurisdic- 
tion of  the  taxing  power.9 

§  17.  Constitutionality  of  Municipal  Ordinance. — 
There  appears  to  be  no  constitutional  objection  to  the 
legislature,  if  it  sees  fit,  investing  municipal  corpora- 
tions with  authority  to  impose  inheritance  taxes.  But 
a  grant  of  such  authority  will  not  be  assumed  unless 
made  in  clear  or  express  terms;  it  will  not  be  inferred 
from  the  ordinary  grant  to  municipal  corporations  of 
power  to  raise  revenue  by  taxing  subjects,  whether 
persons  or  property,  within  their  jurisdiction.  It  is 
to  be  noted  in  this  connection  that  inheritance  taxes 
are  imposed  on  the  succession,  rather  than  on  the  per- 
son or  the  property.  Hence  courts  are  not  inclined  to 
construe  a  general  delegation  of  power  to  tax  persons 
and  property  as  embracing  power  to  tax  inherit- 
ances.10 

§  18.  Unconstitutionality  of  Certain  Statutes. — 
Quite  a  number  of  statutes  imposing  inheritance  taxes 
have  been  declared  unconstitutional,  but  this  has  been 
due  to  peculiar  provisions  in  some  of  the  state  consti- 
tutions limiting  the  power  of  taxation,  or  to  vicious 
provisions  in  the  inheritance  statutes  themselves 

«  Knowlton  v.  Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20  Sup.  Ct.  Eep. 
747;  Snyder  v.  Bettman,  190  U.  S.  249,  47  L.  Ed.  1035,  23  Sup.  Ct.  Rep. 
803. 

10  Town  of  Wytheville  v.  Johnson,  108  Va.  589,  128  Am.  St.  Rep.  981, 
18  L.  R.  A.,  N.  S.,  960,  62  S.  E.  328.  This  question  has  also  been  con- 
sidered by  the  Virginia  court  in  the  earlier  cases  of  Peters  v.  Lynchburg, 
76  Va.  927;  Estate  of  Schoolfield  y.  Lynchburg,  78  Va.  366. 


CONSTITUTIONALITY  OP  STATUTES.  25 

which  offend  general  constitutional  principles."  In 
overthrowing  these  statutes  the  courts  concede  that 
an  inheritance  tax  .can  be  constitutionally  imposed, 
and  probably  all  of  the  states  whose  statutes  have 
been  condemned  as  unconstitutional  have  since 
enacted  inheritance  tax  laws  which  the  courts  have 
upheld. 

§  19.  Rule  of  Uniformity  and  Equality. — The  pro- 
vision common  to  most,  if  not  all,  of  the  constitutions 
of  the  various  states,  that  taxation  shall  be  uniform 
and  equal,  does  not  apply  to  inheritance  taxes,  since 
they  are  imposed  on  the  transmission  of  or  succession 
to  property  rather  than  on  the  property  itself.  The 
legislature  may  discriminate  between  relatives,  and 
between  relatives  and  strangers;  it  may  grant  exemp- 
tions based  on  the  value  of  the  property,  the  degree 
of  relationship  of  the  parties,  and  the  character  of  the 
donee  as  a  charitable  or  benevolent  institution,  with- 
out offending  the  constitutional  requirement  of  uni- 
formity and  equality  in  taxation.  Classification  is  per- 
missible, and  the  rule  of  uniformity  and  equality  is 
complied  with  if  all  members  of  the  same  class  are 
treated  alike.  Within  the  boundaries  of  this  limita- 
tion lie  broad  fields  of  legislative  discretion  which 
courts  cannot  invade.12 

"  Ferry  v.  Campbell,  110  Iowa,  290,  50  L.  R.  A.  92,  81  N.  W.  604; 
Chambe  v.  Durfee,  100  Mich.  112,  58  N.  W.  661;  Union  Trust  Co.  v. 
Durfee,  125  Mich.  487,  84  N.  W.  1101;  State  v.  Gorman,  40  Minn.  232, 
2  L.  K.  A.  701,  41  N.  W.  948;  Drew  v.  Tifft,  79  Minn.  175,  79  Am.  St. 
Rep.  446,  47  L.  R.  A.  525,  81  N.  W.  839;  State  v.  Bazille,  87  Minn.  500, 
94  Am.  St.  Rep.  718,  92  N.  W.  415;  State  v.  Harvey,  90  Minn.  180,  95 
N.  W.  764;  State  v.  Switzler,  143  Mo.  287,  65  Am.  St.  Rep.  653,  40  L.  R. 
A.  280,  45  S.  W.  245;  Curry  v.  Spencer,  61  N.  H.  624,  60  Am.  St.  Rep. 
337;  State  v.  Ferris,  53  Ohio  St.  314,  30  L.  R.  A.  218,  41  N.  E.  579; 
Estate  of  Cope,  191  Pa.  1,  71  Am.  St.  Rep.  749,  45  L.  R.  A.  316,  43  AtL 
79;  State  v.  Mann,  7&  Wis.  469,  45  N.  W.  526,  46  N.  W.  51;  Black  v. 
State,  113  Wis.  205,  90  Am.  St.  Rep.  853,  89  N.  W.  522. 

12  In  re  House  Bill  No.  122,  23  Colo.  492,  48  Pac.  535 ;  Kochersperger 
r.  Drake,  167  111.  122,  41  L.  R.  A.  446,  47  N.  E.  321;  Booth  v.  Common- 


26  INHERITANCE  TAXATION. 

§  20.  Guaranty  of  Equal  Protection. — The  con- 
tention has  been  made,  unsuccessfully,  however,  that 
the  progressive  rates  of  inheritance  taxation,  the  dis- 
crimination between  relatives  of  different  degrees  of 
relationship  and  the  exemption  of  estates  of  limited 
value  are  in  violation  of  the  equal  protection  guaran- 
teed by  the  federal  constitution.  To  quote  from  the 
supreme  court  of  the  United  States:  "The  clause  of 
the  fourteenth  amendment  especially  evoked  is  that 
which  prohibits  a  state  denying  to  any  citizen  the 
equal  protection  of  the  laws.  What  satisfies  this 
equality  has  not  been,  and  probably  never  can  be, 

precisely  defined It  may  be  safely  said  that  the 

rule  prescribes  no  rigid  equality,  and  permits  to  the 

wealth,  130  Ky.  88,  33  L.  E.  A.,  N.  S.,  592,  113  S.  W.  61;  State  v. 
Hamlin,  86  Me.  495,  41  Am.  St.  Eep.  569,  25  L.  E.  A.  632,  30  Atl.  76; 
Estate  of  Fox,  154  Mich.  5,  117  N.  W.  558;  Thompson  v.  Kidder,  74  N. 
H.  89,  12  Ann.  Cas.  948,  65  Atl.  392 ;  Estate  of  McPherson,  104  N.  Y. 
306,  58  Am.  Eep.  502,  10  N.  E.  685 ;  Estate  of  Lord,  186  N.  Y.  549,  79 
N.  E.  1110,  affirmed  in  Lord  v.  Glynn,  211  IT.  S.  477,  53  L.  Ed.  290,  29 
Sup.  Ct.  Eep.  186;  State  v.  Guilbert,  70  Ohio  St.  229,  1  Ann.  Oas.  25,  71 
N.  E.  636;  Estate  of  Hickok,  78  Vt.  259,  6  Ann.  Cas.  578,  62  Atl.  724; 
Dixon  v.  Eicketts,  2'6  Utah,  215,  72  Pac.  947;  Estate  of  Schoolfield  v. 
City  of  Lynchburg,  78  Va.  366;  Nunnemacher  v.  State,  129  Wis.  190,  9 
Ann.  Cas.  711,  9  L.  E.  A.,  N.  S.,  121,  108  N.  W.  627. 

The  power  of  the  legislature  to  classify  the  beneficiaries  of  estates  of 
decedents,  both  according  to  relationship  and  according  to  the  value  of 
the  property  received,  is  upheld.  And  the  right  to  create  exemptions  ia 
conceded:  Estate  of  Fox,  154  Mich.  5,  117  N.  W.  558. 

"An  inheritance  tax  is  not  one  on  property,  but  one  on  the  succession. 
The  right  to  take  property  by  devise  or  descent  is  the  creature  of  the 
law,  and  not  a  natural  right — a  privilege,  and  therefore  the  authority 
which  confers  it  may  impose  conditions  upon  it.  From  these  principles 
it  is  deduced  that  the  states  may  tax  the  privilege,  discriminate  between 
relatives,  and  between  these  and  strangers,  and  grant  exemptions,  and  are 
not  precluded  from  this  power  by  the  provisions  of  the  respective  state 
constitutions  requiring  uniformity  and  equality  of  taxation":  Magoun  v. 
Illinois  Trust  etc.  Bank,  170  U.  S.  283,  42  L.  Ed.  1037,  18  Sup.  Ct.  Eep. 
594;  Estate  of  Magnes,  32  Colo.  527,  77  Pac.  853;  State  v.  Clark,  30 
Wash.  439,  71  Pac.  20. 

In  answering  an  objection  to  the  New  York  statute  that  it  taxes  trans- 
fers only  of  one  character,  exempting  others,  the  court  of  appeals  says: 
"The  right  and  power  of  governments  to  single  out  certain  classes  of 


CONSTITUTIONALITY   OF  STATUTES.  27 

discretion  and  wisdom  of  the  state  a  wide  latitude  as 

far  as  interference  by  this  court  is  concerned 

The  rule,  therefore,  is  not  a  substitute  for  municipal 
law;  it  only  prescribes  that  that  law  have  the  attribute 
of  equality  of  operation,  and  equality  of  operation 
does  not  mean  indiscriminate  operation  on  persons 
merely  as  such,  but  on  persons  according  to  their 
relation.  In  some  circumstances  it  may  not  tax  A 
more  than  B,  but  if  A  be  of  a  different  trade  or  profes- 
sion than  B,  it  may.  And  in  matters  not  of  taxation, 
if  A  be  a  different  kind  of  corporation  than  B,  it  may 
subject  A  to  a  different  rule  of  responsibility  to  ser- 
vants than  B In  other  words,  the  state  may 

distinguish,  select,  and  classify  objects  of  legislation, 

objects  for  taxation,  leaving  other  classes  exempt  or  taxed  at  a  different 
rate  or  in  a  different  manner,  is  unquestionable.  Such  power  has  been 
exercised  by  all  governments  from  the  earliest  times.  It  is  subject,  how- 
ever, to  the  qualification  that  the  classification  must  not  be  so  purely 
arbitrary  as  to  have  no  reason,  not  even  an  insufficient  or  merely 
plausible  reason,  to  justify  it":  Estate  of  Keeney,  194  N.  Y.  281,  87  N. 

E.  428,  affirmed,  Keeney  v.  New  York,  222  U.  S.  525,  56  L.  Ed. ,  32 

Sup.  Ct.  Eep.  105. 

To  the  same  effect,  see  the  able  presentation  of  the  subject  in  Estate 
of  McKennan  (S.  D.),  130  N.  W.  33;  Estate  of  Fox,  154  Mich.  5,  117 
N.  W.  558. 

To  quote  from  the  Colorado  court:  "A  careful  investigation  will  dis- 
close that,  with  few  exceptions,  where  similar  questions  have  been  raised 
in  other  states  and  in  the  supreme  court  of  the  United  States,  an  in- 
heritance or  succession  tax  has  been  held  not  to  come  within  the  purview 
of  the  uniformity  and  equality  clause  of  state  constitutions,  and  that  the 
power  to  impose  the  same  is  to  be  found  in  the  sovereign  power  of  taxa 
tion  which  the  state  possesses  to  the  fullest  degree,  except  as  limited  in 
its  organic  act.  In  these  decisions  substantially  every  objection  as  to 
the  lack  of  uniformity  and  equality,  and  the  alleged  arbitrary  and  unjust 
discriminations  which  these  provisions  are  said  to  exhibit,  and  that  they 
contravene  various  sections  of  our  bill  of  rights  affecting  the  property 
rights  of  citizens,  have  been  considered  and  decided  adversely  to  the  con- 
tention of  counsel  for  plaintiff  in  error":  Estate,  of  Margnes,  32  Colo. 
527,  77  Pac.  853. 

"Since  the  tax  ia  imposed  upon  the  privilege  of  receiving  or  taking 
property,"  said  the  Montana  court,  "and  not  upon  the  property  itself, 
ami  since  the  privilege  ia  itself  not  a  natural  right,  but  a  creature  of 


28  INHERITANCE  TAXATION. 

and  necessarily  this  power  must  have  a  wide  range  of 
discretion.  It  is  not  without  limitation,  of  course. 
"Two  principles,  therefore,  must  be  reconciled  in 
the  Illinois  inheritance  law  if  it  is  to  be  sustained,  the 
equality  of  protection  of  the  laws  guaranteed  by  the 
fourteenth  amendment,  and  the  power  of  the  state  to 
classify  persons  and  property.  The  latter  principle 
needs  further  consideration.  What  test  is  there  of 
the  reasonableness  of  a  classification — of  one  based 
upon  'some  difference  which  bears  a  just  and  proper 
relation  to  the  attempted  classification — and  is  not  a 
mere  arbitrary  selection'?  Legislation  special  in  char- 
acter is  not  forbidden  by  it,  as  we  have  seen 

There  is  therefore  no  precise  application  of  the  rule  of 

law,  it  follows  as  a  corollary  that,  except  so  far  as  it  is  clearly  restricted 
by  the  constitution,  the  legislature  may  impose  such  burdens  upon  it  as 
it  may  see  fit.  The  legislature  is  not  restricted  in  this  regard  by  the 
provision  of  the  constitution  requiring  equality  and  uniformity  in  the 
levy  of  ordinary  taxes  upon  property,  nor  for  the  same  reason  is  its  power 
restricted  by  the  provision  prescribing  a  maximum  rate  for  state  taxa- 
tion; nor,  again,  by  the  provision  invoked  here,  fixing  the  valuation  of  a 
certain  class  of  property  or  those  providing  for  exemptions.  In  Plummer 
v.  Coler,  178  U.  S.  115,  44  L.  Ed.  998,  20  Sup.  Ct.  Eep.  829,  it  was  held 
that  a  legacy  of  United  States  bonds  is  not  exempt  from  the  inheritance 
tax  imposed  by  the  laws  of  the  state  of  New  York,  though  the  bonds  are 
themselves  exempt  from  taxation  in  any  form  for  ordinary  purposes  by 
or  under  authority  of  any  state.  This  conclusion  was  arrived  at  after  a 
review  of  the  decisions  from  many  of  the  states.  To  the  same  effect  are 
the  decisions  of  the  states  generally.  If  specific  exemptions  from  taxa- 
tion for  ordinary  revenue  purposes  do  not,  under  the  theory  of  these 
eases,  apply,  it  must  necessarily  follow  that  an  arbitrary  method  of 
valuation  provided  for  in  the  constitution  with  reference  to  a  certain 
class  of  property  for  ordinary  purposes  does  not  include  the  privilege  to 
take  by  will,  succession,  or  testamentary  grant":  Estate  of  Tuohy,  35 
Mont.  431,  90  Pac.  170. 

In  State  v.  Switzler,  143  Mo.  287,  65  Am.  St.  Eep.  653,  40  L.  B.  A. 
280,  45  S.  W.  245,  and  Estate  of  Cope,  191  Pa.  1,  71  Am.  St.  Eep.  749, 
45  L.  E.  A.  316,  43  Atl.  79,  statutes  imposing  inheritance  taxes  were  held 
unconstitutional  for  want  of  uniformity  as  to  persona  or  properties  be- 
longing to  the  same  class. 

In  Minnesota  the  constitutional  provision  requiring  equality  of  taxa- 
tion applies  to  inheritance  taxes  exactly  as  it  does  to  taxes  on  property, 


CONSTITUTIONALITY  OF  STATUTES.  29 

reasonableness  of  classification,  and  the  rule  of  equal- 
ity permits  many  practical  inequalities.  And  neces- 
sarily so.  In  a  classification  for  governmental  pur- 
poses there  cannot  be  an  exact  exclusion  or  inclusion 
of  persons  and  things.  Bearing  these  considerations 
in  mind  we  can  solve  the  question  in  controversy. 
There  are  three  main  classes  in  the  Illinois  statute, 
the  first  and  second  being  based,  respectively,  on 
lineal  and  collateral  relationship  to  the  testator  or 
intestate,  and  the  third  being  composed  of  strangers 
to  his  blood  and  distant  relatives.  The  latter  is  again 
divided  into  four  subclasses  dependent  upon  the 
amount  of  the  estate  received.  The  first  two  classes, 
therefore,  depend  on  substantial  differences,  differ- 
ences which  may  distinguish  them  from  each  other 
and  them  or  either  of  them  from  the  other  class — dif- 
ferences, therefore,  which  'bear  a  just  and  proper  re- 
lation to  the  attempted  classification.*  ....  And  if 
the  constituents  of  each  class  are  affected  alike,  the 
rule  of  equality  prescribed  by  the  cases  is  satisfied. 
In  other  words,  the  law  operates  'equally  and  uni- 
formly upon  all  persons  in  similar  circumstances.' 
"Nor  do  the  exemptions  of  the  statute  render  its 
operation  unequal  within  the  meaning  of  the  four- 
teenth amendment The  provisions  of  the  stat- 
ute in  regard  to  the  tax  on  legacies  to  strangers  to  the 

except  as  therein  otherwise  expressly  provided,  and  statutes  providing 
for  such  taxes,  to  be  valid,  must  include  all  inheritances,  devises,  be- 
quests of  every  description,  including  those  of  both  real  and  personal 
property,  and  they  must  be  uniform  and  apply  equally  to  all  persons, 
whether  collateral  or  lineal  descendants:  Drew  v.  Tifft,  79  Minn.  175, 
79  Am.  St.  Rep.  446,  47  L.  R.  A.  525,  81  N.  W.  839;  State  v.  Bazille, 
87  Minn.  500,  94  Am.  St.  Rep.  718,  92  N.  W.  415.  In  this  last  case  the 
statute  of  Minnesota  is  held  unconstitutional  because  it  operates  un- 
equally between  collateral,  and  also  as  between  collateral  and  lineal, 
descendants,  transfers  to  the  former  being  taxed  to  the  full  value,  when 
such  value  exceeds  five  thousand  dollars,  whereas  as  to  lineal  descendants 
the  tax  is  imposed  only  upon  the  excess  over  and  above  a  fixed  valuation 
of  five  thousand  dollars. 


30  INHERITANCE  TAXATION. 

blood   of  an  intestate  need  further  comment 

There  are  four  classes  created,  and  manifestly  there  is 
equality  between  the  members  of  each  class.  Inequal- 
ity is  only  found  by  comparing  the  members  of  one 
class  with  those  of  another.  It  is  illustrated  by  appel- 
lant as  follows:  One  who  receives  a  legacy  of  $10,000 
pays  three  per  cent,  or  $300,  thus  receiving  $9,700  net, 
while  one  receiving  a  legacy  of  $10,001  pays  four  per 
cent  on  the  whole  amount,  or  $400.04,  thus  receiving 
$9,600.96,  or  $99.04  less  than  the  one  whose  Iegac5r 

was  actually  one  dollar  less  valuable If  there  is 

unsoundness  it  must  be  in  the  classification.  The  mem- 
bers of  each  class  are  treated  alike;  that  is  to  say,  all 
who  inherit  $10,000  are  treated  alike — all  who  inherit 
any  other  sum  are  treated  alike.  There  is  equality, 
therefore,  within  the  classes.  If  there  is  inequal- 
ity it  must  be  because  the  members  of  a  class  are  arbi- 
trarily made  such  and  burdened  as  such  upon  no  dis- 
tinctions justifying  it But  neither  case  can  be 

said  to  be  contrary  to  the  rule  of  equality  of  the  four- 
teenth amendment.  That  rule  does  not  require,  as  we 
have  seen,  exact  equality  of  taxation.  It  only  re- 
quires that  the  law  imposing  it  shall  operate  on  all 
alike  under  the  same  circumstances..  The  tax  is  not 
on  money;  it  is  on  the  right  to  inherit,  and  hence  n 
condition  of  inheritance,  and  it  may  be  graded  accord- 
ing to  the  value  of  that  inheritance.  The  condition  is 
not  arbitrary  because  it  is  determined  by  that  value; 
it  is  not  unequal  in  operation  because  it  does  not  levy 
the  same  percentage  on  every  dollar;  does  not  fail  to 
treat  'all  alike  under  like  circumstances  and  condi- 
tions, both  in  the  privilege  conferred  and  the  liabili- 
ties imposed. '  "  " 

is  Magoun  v.  Illinois  Trust  etc.  Bank,  170  U.  S.  283,  42  L.  Ed.  1037, 
18  Sup.  Ct.  Bep.  594. 


CONSTITUTIONALITY   OP   STATUTES  31 

And  in  Billings  v.  Illinois,14  it  was  assigned  as  error 
that  the  Illinois  ''statute  is  in  contravention  of  the 
fourteenth  amendment  to  the  constitution  of  the 
United  States  of  America,  in  that  the  classification  of 
life  tenants  is  arbitrary  and  unreasonable,  and  denies 
to  the  plaintiffs  in  error,  as  life  tenants,  the  equal  pro- 
tection of  the  laws;  because  the  statute,  as  interpreted 
and  enforced  by  the  state  courts,  taxes  life  estates 
where  the  remainder  is  to  lineals,  but  does  not  tax, 
and  expressly  exempts,  similar  life  estates  where  the 
remainder  is  to  collaterals  or  to  strangers  in  blood. 
....  If  there  had  been  a  proper  classification  there 
could  not  have  been  the  denial  of  the  equal  protec- 
tion of  the  laws,  and  we,  therefore,  expressed  (in 
Magoun  v.  Illinois  Bank)  and  illustrated  the  principle 
upon  which  it  should  be  based.  We  said  it  was  es- 
tablished by  cases  that  classification  must  be  based 
on  some  reasonable  ground.  It  could  not  be  a  'mere 
arbitrary  selection.'  But  what  is  the  test  of  an  arbi- 
trary selection?  It  is  difficult  to  exhibit  it  precisely 
in  a  general  rule.  Classification  is  essentially  the 
same  in  law  as  it  is  in  other  departments  of  knowledge 
or  practice.  It  is  the  grouping  of  things  in  specula- 
tion or  practice,  because  they  'agree  with  one  another 
in  certain  particulars  and  differ  from  other  things 
in  those  same  particulars.'  Things  may  have  very 
diverse  qualities  and  yet  be  united  in  a  class.  They 
may  have  very  similar  qualities  and  yet  be  cast  in 

different  classes If  the  purpose  is  within  the 

legal  powers  of  the  legislature,  and  the  classification 
made  has  relation  to  that  purpose  (excludes  no  per- 
sons or  objects  that  are  affected  by  the  purpose,  in- 
cludes all  that  are),  logically  speaking,  it  will  be  ap- 
propriate; legally  speaking,  a  law  based  upon  it  will 

14  Billings  v.  Illinois,  188  U.  S.  97,  47  L.  Ed.  400,  23  Sup.  Ct.  Rep. 
272. 


32  INHERITANCE  TAXATION. 

have  equality   of  operation Undoubtedly,   life 

tenants,  regarded  simply  as  persons,  may  be  in  legal 
contemplation  the  same;  estates  for  life,  regarded 
simply  as  estates  with  their  attributes,  also  in  legal 
contemplation,  may  be  said  to  be  the  same,  but -that 
is  not  all  that  is  to  be  considered,  nor  is  it  determina- 
tive. We  must  regard  the  power  of  the  state  over 
testate  and  intestate  dispositions  of  property,  its 
power  to  create  and  limit  estates,  and,  as  resulting, 
its  power  to  impose  conditions  upon  their  transfer  or 
devolution.  It  is  upon  this  power  that  inheritance  tax 
laws  are  based,  and  we  said,  in  the  Magoun  case,  that 
the  power  could  be  exercised  by  distinguishing  be- 
tween the  lineal  and  collateral  relatives  of  a  testator. 
There  the  amount  of  tax  depended  upon  him  who  im- 
mediately received;  here  the  existence  of  the  tax  de- 
pends upon  him  who  ultimately  receives.  That  can 
make  no  difference  with  the  power  of  the  state.  No 
discrimination  being  exercised  in  the  creation  of  the 
class,  equality  is  observed.  Crossing  the  lines  of  the 
classes  created  by  the  statute,  discrimination  may  be 
exhibited,  but  within  the  classes  there  is  equality." 

§  21.  Discrimination  Between  Relatives. — The  leg- 
islature is  competent,  in  imposing  inheritance  taxes, 
to  discriminate  between  lineal  and  collateral  relatives, 
exempting  the  former  entirely  or  imposing  upon  them 
charges  less  burdensome  than  upon  the  collaterals; 
it  may  likewise  discriminate  against  strangers  to  the 
blood  of  the  decedent.  This  question  of  discrimina- 
tion between  persons  of  different  degrees  of  relation- 
ship is  one  of  legislative  discretion,  limited,  if  at  all, 
only  by  the  rule  of  reasonableness  and  propriety;  and 
the  validity  of  statutes  providing  for  such  discrimina- 
tion has  frequently  been  recognized.  The  classifica- 
tion thus  effected  is  in  accord  with  general  sentiment, 


CONSTITUTIONALITY  OF   STATUTES.  33 

and  does  not  offend  the  constitutional  rule  of  uni- 
formity and  equality.16 

And  the  equal  protection  of  the  laws  is  not  denied 
by  a  statute  which  subjects  to  the  burdens  of  an  in- 

is  Estate  of  Wilmerding,  117  Cal.  281,  49  Pac.  181;  Estate  of  Camp- 
bell, 143  Cal.  623,  77  Pac.  674;  Estate  of  Magnes,  32  Colo.  527,  77 
Pac.  853;  Appeal  of  Nettleton,  76  Conn.  235,  56  Atl.  565;  Billings  v. 
State,  189  111.  472,  59  L.  R.  A.  807,  59  N.  E.  798;  Booth  v.  Common- 
wealth, 130  Ky.  88,  33  L.  R.  A.,  N.  S.,  592,  113  S.  W.  61;  State  v. 
Hamlin,  86  Me.  495,  41  Am.  St.  Eep.  569,  25  K  B.  A.  632,  30  Atl.  76; 
Tyson  v.  State,  28  Md.  577;  State  v.  Dalrymple,  70  Md.  294,  3  L.  R.  A. 
372,  17  Atl.  82;  Minot  v.  Winthrop,  162  Mass.  113,  26  L.  R.  A.  259,  38 
N.  E.  512;  Union  Trust  Co.  v.  Wayne  Probate  Judge,  125  Mich.  487, 
84  N.  W.  1101;  State  v.  Bazille,  97  Minn.  11,  7  Ann.  Oas.  1056,  6  L.  R. 
A.,  N.  S.,  732,  106  N.  W.  93;  State  v.  Vance,  97  Minn.  532,  106  N.  W. 
98;  State  v.  Henderson,  160  Mo.  190,  60  S.  W.  1093;  Gelsthorpe  v. 
Furnell,  20  Mont.  299.,  39  L.  R.  A.  170,  51  Pac.  267;  Thompson  v. 
Kidder,  74  N.  H.  89,  12  Ann.  Cas.  948,  65  Atl.  392;  Opinion  of  the 
Justices  (N.  H.),  79  Atl.  490;  Estate  of  McPherson,  104  N.  Y.  306, 
58  Am.  Rep.  502,  10  N.  E.  685 ;  Estate  of  Patterson,  146  App.  Div.  286, 
130  N.  Y.  Supp.  970;  Pullen  v.  Commissioners  of  Wake  Co.,  66  N.  C. 
361;  Hagerty  v.  State,  55  Ohio  St.  613,  45  N.  E.  1046;  State  v.  Alston, 
94  Tenn.  674,  28  L.  R.  A.  178,  30  S.  W.  750;  Eyre  v.  Jacob,  14  Gratt. 
(Va.)  422,  72  Am.  Dee.  367;  State  v.  Clark,  30  Wash.  439,  71  Pac.  20; 
Nunnemacher  v.  State,  129  Wis.  190,  9  Ann.  Cas.  711,  9  L.  R.  A.,  N.  S., 
121,  108  N.  W.  627;  Wallace  v.  Myers,  38  Fed.  184,  4  L.  R.  A.  171; 
Magoun  v.  Illinois  Trust  etc.  Bank,  170  U.  S.  283,  42  L.  Ed.  1037,  IS 
Sup.  Ct.  Rep.  594. 

It  has  the  sanction  of  nearly  all  the  states  that  have  levied  taxes  of 
this  kind,  and  has  a  sanction  in  reason,  for  the  moral  claim  of  col- 
laterals and  strangers  is  less  than  that  of  kindred  in  a  direct  line,  and 
the  privilege  is  therefore  greater:  Minot  v.  Winthrop,  162  Mass.  113, 
26  L.  R.  A.  259,  38  N.  E.  512. 

"In  the  absence  of  constitutional  prohibition  the  legislature  is  supreme, 
and  may  dispose  of  an  intestate  decedent's  estate,  after  payment  of  his 
debts,  to  any  class  or  classes  of  his  kindred,  to  the  exclusion  of  any  class 
or  classes.  It  may  limit  heirship  to  lineal  descendants,  to  the  absolute 
exclusion  of  all  collaterals.  If  it  permits  collateral  kindred  to  inherit, 
no  reason  is  perceived  why  the  state  is  debarred  from  exacting  an  ex- 
cise or  duty  from  such  collateral,  for  such  privilege  allowed  by  the 
state.  It  is  necessary  to  make  such  excise  uniform  as  to  the  entire 
class  of  collaterals.  It  must  not  tax  one  and  exempt  another  in  the 
same  class.  But  it  is  not  a  violation  of  this  principle  to  require  an 
excise  from  all  collaterals  and  strangers,  and  exempt  from  the  excise 
classes  nearer  in  blood  to  the  decedent.  ....  An  excise  tax  upon  the 
3 


34  INHERITANCE  TAXATION. 

heritance  tax  the  brothers  and  sisters  of  a  decedent, 
while  exempting  therefrom  strangers  to  the  blood, 
such  as  the  wife  or  widow  of  a  son  or  the  husband  of 
a  daughter  of  the  decedent.16  In  upholding  this  pro- 
vision of  the  California  statute  the  supreme  court  of 
the  United  States17  uses  this  language:  "The  conten- 
tion is  that  the  assailed  law  of  California  was  repug- 
nant to  the  fourteenth  amendment,  because  it  sub- 
jected to  the  burdens  of  an  inheritance  tax  or  charge 
brothers  and  sisters  of  a  decedent,  and  did  not  subject 
to  any  burden  such  strangers  to  the  blood  as  the  wife 
or  widow  of  a  son  or  the  husband  of  a  daughter  of  a 
decedent. 

"We  do  not  stop  to  refer  in  detail  to  the  many 
forms  of  argument  by  which  the  contention  is  sought 
to  be  sustained,  but  content  ourselves  with  stating 
that,  whatever  be  the  form  in  which  the  proposi- 
tions relied  on  are  advanced,  they  all  reduce  them- 
selves to,  and  must  depend  upon,  the  soundness  of 
the  contention  that  the  fourteenth  amendment  com- 
pels the  states,  in  levying  inheritance  taxes,  and,  a 
fortiori,  in  regulating  inheritances,  to  conform  to  blood 
relationship.  That  is  to  say,  in  their  last  analysis  all 

value  of  the  property  so  allowed  to  be  received  by  the  collateral  or 
stranger  to  the  blood  leaves  him  in  much  better  condition  than  an  abso- 
lute withdrawal  of  the  privilege  would":  State  v.  Ilamlin,  86  Me.  495, 
41  Am.  St.  Rep.  569,  25  L.  R.  A.  632,  30  Atl.  76. 

"Inheritance"  and  "taxation"  have  no  necessary  connection  as  sub- 
jects of  legislation,  and  the  legislature  having  plenary  authority  in 
reference  to  each  of  these  subjects  is  not  required  to  consider  them 
together,  nor  to  shape  its  legislation  concerning  one  with  reference  to 
the  other,  nor  to  observe  the  same  classification  for  purposes  of  taxation 
that  is  made  for  purposes  of  inheritance:  Estate  of  Wilmerding,  117 
Cal.  281,  49  Pac.  181. 

A  statute  exempting  stepchildren  from  inheritance  taxation  is  con- 
stitutional: Commonwealth  v.  Eandall,  225  Pa.  197,  73  Atl.  1109. 

ie  Estate  of  Campbell,  143  Cal.  627,  77  Pac.  674,  affirmed  in  200 
TJ.  S:  87,  50  L.  Ed.  382,  26  Sup.  Ct.  Rep.  182. 

IT  Campbell  v.  California,  200  U.  S.  87,  50  L.  Ed.  382,  2>Q  Sup.  Ct. 
Rep.  182. 


CONSTITUTIONALITY   OF   STATUTES.  35 

the  arguments  depend  upon  the  proposition  that  the 
fourteenth  amendment  has  taken  away  from  the  states 
their  power  to  regulate  the  passage  of  property  by 
death  or  the  burdens  which  may  be  imposed  resulting 
therefrom,  because  that  amendment  confines  the  states 
absolutely,  both  as  to  the  passage  of  such  property 
and  as  to  the  burdens  imposed  thereon,  to  the  rule 
of  blood  relationship.  To  state  the  proposition  is  to 
answer  it.  Its  unsoundness  is  demonstrated  by  previ- 
ous decisions  of  this  court.18  It  is  true  that  in  the 
first  of  the  cited  cases  it  was  expressly  declared  or 
impliedly  recognized  that  in  the  exercise  by  a  state 
of  its  undoubted  power  to  regulate  the  burdens  which 
might  be  imposed  on  the  passage  of  property  by 
death,  a  case  might  be  conceived  of  where  a  burden 
would  be  so  arbitrary  as  to  amount  to  a  denial  of  the 
equal  protection  of  the  laws.  But  this  suggestion  did 
not  imply  that  the  effect  of  the  fourteenth  amendment 
was  to  control  the  states  in  the  exercise  of  their 
plenary  authority  to  regulate  inheritances  and  to  de- 
termine the  persons  or  objects  upon  which  an  inherit- 
ance burden  should  be  imposed.  In  this  case  there 
can  be  no  doubt,  if  the  right  of  a  state  be  conceded 
to  select  the  persons  who  may  inherit  or  upon  whom 
the  burden  resulting  from  an  inheritance  may  be  im- 
posed, the  complaint  against  the  statute  is  entirely 
without  merit. 

"The  whole  case,  therefore,  must  rest  upon  the 
assumption  that  because  the  state  of  California  has 
not  followed  the  rule  of  blood  relationship,  but  as 
to  particular  classes  has  applied  the  rule  of  affinity 
by  marriage,  therefore  the  constitutional  provision 
guaranteeing  the  equal  protection  of  the  laws  was 
violated.  But,  unless  the  effect  of  the  fourteenth 

"  Magoun  v.  Illinois  Trust  etc.  Bank,  170  TJ.  S.  283,  43  L.  Ed.  1037, 
18  Sup.  Ct.  Rep.  594;  Orient  Ins.  Co.  v,  Daggs,  172  U.  S.  557,  43  L.  Ed. 
552,  19  Sup.  Ct  Eep.  281. 


36  INHERITANCE  TAXATION. 

amendment  was  inexorably  to  limit  the  states  in 
enacting  inheritance  laws  to  the  rule  of  blood  rela- 
tionship, such  a  regulation  plainly  involved  the  exer- 
cise of  legislative  discretion  and  judgment,  with  which 
the  fourteenth  amendment  did  not  interfere.  Such 
a  regulation  cannot  in  reason  be  said  to  be  an  exer- 
cise of  merely  arbitrary  power.  To  illustrate:  It  as- 
suredly would  not  be  an  arbitrary  exercise  of  power 
for  a  state  to  put  in  one  class,  for  the  purpose  of 
inheritance  or  the  burdening  of  the  privilege  to  in- 
herit, all  blood  relatives  to  a  designated  degree,  ex- 
cluding brothers  and  sisters,  and  to  place  all  other 
and  more  remote  blood  relatives,  including  brothers 
and  sisters,  in  a  second  class  along  with  strangers  to 
the  blood. 

"This  being  true,  it  cannot,  without  causing  the 
equality  clause  of  the  fourteenth  amendment  to 
destroy  the  powers  of  the  states  on  a  subject  of  a 
purely  local  character,  be  held  that  a  classification 
which  takes  near  relatives  by  marriage  and  places 
them  in  a  class  with  lineal  relatives  is  so  arbitrary 
as  to  transcend  the  limits  of  governmental  power. 
If  this  were  not  true,  state  legislation  preferring  a 
wife  in  the  distribution  of  the  estate  of  her  husband 
to  a  brother  or  sister  of  the  husband  would  be  void 
as  repugnant  to  the  fourteenth  amendment.  So,  also, 
would  be  the  provision  in  the  California  statute  we 
are  considering,  preferring  an  adopted  child  of  a  de- 
cedent to  a  brother  or  sister.  With  the  motives  of 
public  policy  which  may  induce  a  state  to  prefer  near 
relatives  by  affinity  to  collateral  relatives,  we  are  not 
concerned,  since  the  fourteenth  amendment  does  not 
deprive  a  state  of  the  power  to  regulate  and  burden 
the  right  to  inherit,  but  at  the  most  can  only  be  held 
to  restrain  such  an  exercise  of  power  as  would  exclude 
the  conception  of  judgment  and  discretion,  and  which 


CONSTITUTIONALITY   OP  STATUTES.  37 

would  be  so  obviously  arbitrary  and  unreasonable  as 
to  be  beyond  the  pale  of  governmental  authority."19 

§  22.  Discrimination  Against  Nonresidents. — In 
imposing  inheritance  taxes  a  disposition  is  in  some 
instances  manifested  to  discriminate  against  nonresi- 
dents and  aliens.19*  The  exemption  usually  accorded 
gifts  to  charitable  institutions  are  generally  denied 
where  the  gifts  are  to  foreign  corporations;  and  stat- 
utes thus  excluding  such  corporations  from  the  ex- 
emption do  not  abridge  the  privileges  or  immunities 
of  the  citizens  of  the  United  States,  nor  deny  the  equal- 
ity of  the  laws.  Foreign  and  domestic  corporations 
naturally  fall  into  two  classes,  and  the  legislature 
has  not  far  to  look  to  discover  various  valid  reasons 
for  favoring  the  latter.  And  corporations  are  not 
"citizens"  within  the  meaning  of  the  provision  of  the 
constitution  of  the  United  States  that  the  citizens 
of  each  state  shall  be  entitled  to  all  the  privileges 
or  immunities  of  the  citizens  of  the  several  states.20 

A  collateral  inheritance  tax  law  exempting  nephews 
and  nieces  of  the  decedent  who  are  residents  of  the 

i»  Campbell  v.  California,  200  U.  9.  87,  50  L.  Ed.  382,  26  Sup.  Ct. 
Rep.  182. 

•i9»  As  to  the  right  of  an  alien  or  nonresident,  if  not  "aggrieved,"  to 
question  the  constitutionality  of  an  inheritance  tax  statute,  see  Estate 
of  Damon,  10  Cal.  App.  542,  102  Pac.  684;  Estate  of  Johnson,  139  Cal. 
534,  96  Am.  St.  Rep.  161,  73  Pac.  425. 

The  equal  protection  of  the  laws  is  not  denied  by  the  New  York 
statute  imposing  taxes  upon  certain  bequests  of  personalty  by  a  non- 
resident owning  both  real  and  personal  property  within  the  state,  be- 
cause, under  the  statute  as  construed  by  the  state  courts,  the  tax  cannot 
be  collected  if  the  only  property  belonging  to  the  decedent  situated 
within  the  state  is  personalty:  Beers  v.  Glynn,  211  U.  8.  477,  53  L.  Ed. 
290,  29  Sup.  Ct.  Rep.  186. 

20  Estate  of  Speed,  216  111.  23,  108  Am.  St.  Rep.  189,  74  N.  E.  809, 
affirmed  in  203  U.  S.  553,  8  Ann.  Gas.  157,  51  L.  Ed.  314,  27  Sup.  Ct. 
Rep.  171;  Humphreys  v.  State,  70  Ohio  St.  67,  101  Am.  St.  Rep.  888, 
1  Ann.  Cas.  233,  65  L.  R.  A.  776,  70  N.  E.  957.  The  Ohio  court  holds 
that  a  statute  imposing  an  inheritance  tax  upon  foreign  charitable  cor- 


38  INHERITANCE  TAXATION. 

state  does  not  conflict  with  the  provision  of  the  federal 
constitution  that  the  citizens  of  each  state  shall  be 
entitled  to  all  the  privileges  and  immunities  of  citi- 
zens of  the  several' states ;  but,  by  virtue  of  that  pro- 
vision, the  exemption  must  be  accorded  to  nephews 
and  nieces  who  are  citizens  of  any  of  the  sister  states, 
leaving,  as  subject  to  the  tax,  all  other  nephews  and 
nieces,  aliens  and  citizens  of  the  United  States,  who 
are  not  citizens  of  any  particular  state.21 

§  23.  Discrimination  Against  Aliens. — There  are, 
between  the  United  States  and  many  nations  of  the 
world,  treaty  provisions  touching  the  transmission  of 
property  situated  in  this  country  to  alien  heirs,  dev- 
isees, and  legatees.  The  effect  of  such  provisions 
on  the  right  of  the  several  states  to  impose  inheritance 
taxes  on  transfers  to  aliens,  and,  in  doing  so,  to  dis- 
criminate against  them,  will  be  considered  in  a  subse- 
quent chapter.22  In  the  absence  of  any  treaty  restric- 
tions, there  is  no  doubt  that  a  state  may,  in  the  exer- 
cise of  its  power  to  regulate  the  manner  and  the  terms 
upon  which  real  and  personal  property  within  its 
boundaries  may  be  transmitted  by  last  will  and  testa- 
ment or  by  inheritance  or  succession,  impose  an  in- 
heritance tax  upon  transmissions  of  property  within 
its  dominion  to  aliens,  even  though  no  such  tax  is  im- 
posed on  transmissions  to  citizens.28 

The  supreme  court  of  the  United  States,  in  affirm- 
ing a  decision  of  the  supreme  court  of  Louisiana, 

porations  operating  to  some  extent  within  the  state,  as  to  property 
received  by  them  therein  by  gift,  bequest  or  devise,  is  not  unconstitu- 
tional as  an  unlawful  discrimination  against  them  or  as  denying  them 
the  equal  protection  of  the  law. 

21  Estate  of  Johnson,  139  Gal.  532,  96  Am.  St.  Eep.  161,  73  Pac.  424, 
overruling  Estate  of  Mahoney,  133  Cal.  180,  85  Am.  St.  Rep.  155,  65 
Pac.  389. 

22  Sees.  190-197,  post. 

23  State  v.  Poydras,  9  La.  Ann.  165;  Succession  of  Schaffer,  13  La. 
Ann.  113;  Succession  of  Sala,  50  La.  Ann.  1009,  24  South.  674;  Prevost 


CONSTITUTIONALITY  OP  STATUTES.  39 

wherein  an  early  statute  of  that  state  imposing  a  suc- 
cession tax  on  nonresidents  of  the  state  or  of  the 
United  States  was  upheld  in  its  application  to  a  resi- 
dent and  citizen  of  France,  saiu  through  Justice 
Taney:  "The  law  in  question  is  nothing  more  than  an 
exercise  of  the  power  which  every  state  and  sov- 
ereignty possesses,  of  regulating  the  manner  and 
terms  upon  which  property  real  or  personal  within 
its  dominion  may  be  transmitted  by  last  will  and  tes- 
tament or  by  inheritance,  and  of  prescribing  who  shall 
and  who  shall  not  be  capable  of  taking  it.  Every 
state  or  nation  may  unquestionably  refuse  to  allow 
an  alien  to  take  either  real  or  personal  property  situ- 
ated within  its  limits,  either  as  heir  or  legatee,  and 
may,  if  it  thinks  proper,  direct  that  property  so  de- 
scending or  bequeathed  shall  belong  to  the  state.  In 
many  of  the  states  of  this  Union  at  this  day,  real 
property  devised  to  an  alien  is  liable  to  escheat.  And 
if  a  state  may  deny  the  privilege  altogether,  it  follows 
that,  when  it  grants  it,  it  may  annex  to  the  grant  any 
conditions  which  it  supposes  to  be  required  by  its 
interests  or  policy.  This  has  been  done  by  Louisiana. 
The  right  to  take  is  given  to  the  alien,  subject  to  a 
deduction  of  ten  per  cent  for  the  use  of  the  state.  In 
some  of  the  states  laws  have  been  passed  at  different 
times  imposing  a  tax  similar  to  the  one  now  in  ques- 
tion upon  its  own  citizens  as  well  as  foreigners;  and 
the  constitutionality  of  these  laws  has  never  been 
questioned.  And  if  a  state  may  impose  it  upon  its 
own  citizens,  it  will  hardly  be  contended  that  aliens 
are  entitled  to  exemption;  and  that  their  property  in 
our  own  country  is  not  liable  to  the  same  burdens  that 
may  lawfully  be  imposed  upon  that  of  our  own  citizens. 
We  can  see  no  objection  to  such  a  tax,  whether  im- 

V.  Greeneaux,  60  U.  S.  (19  How.)  1,  15  L.  Ed.  572,  affirming  12  La. 
Ann.  577  j  Frederickson  v.  Louisiana,  64  U.  S.  (23  How.)  445,  16  L. 
Ed.  577. 


40  INHERITANCE  TAXATION. 

posed  upon  citizens  and  aliens  alike  or  upon  the  latter 
exclusively.  It  certainly  has  no  concern  with  com- 
merce, or  with  imports  or  exports.  It  has  been  sug- 
gested, indeed,  in  the  argument,  that,  as  the  legatee 
resided  abroad,  it  would  be  necessary  to  transmit  to 
her  the  proceeds  of  the  portion  of  the  estate  to  which 
she  was  entitled,  and  that  the  law  was  therefore  a 
tax  on  imports.  But  if  that  argument  was  sound,  no 
property  would  be  liable  to  be  taxed  in  a  state,  when 
the  owner  intended  to  convert  it  into  money  and  send 
it  abroad. "  " 

§  24.    Exemption  of  Estates  of  Limited  Value. — 

Most,  if  not  all,  inheritance  tax  laws  exempt  from  their 
operation  estates  below  a  certain  value.  A  larger 
exemption  is  usually  made  in  case  of  direct  inherit- 
ances than  is  allowed  to  inheritances  by  collaterals  or 
strangers.  There  is  no  constitutional  objection  to 
this  form  of  inequality,  and  the  validity  of  statutes 
creating  such  exemptions  has  been  recognized  repeat- 
edly. It  is  peculiarly  within  the  province  of  the  legis- 
lature to  declare  what  privileges  shall  be  taxed  and 
what  exemptions  shall  be  allowed;  and  obviously  the 
exemption  of  small  estates  is  not  arbitrary  or  with- 
out reason,  for  thereby  the  tax  is  made  to  rest  most 
lightly  on  those  least  able  to  bear  the  burden.  The 
administration  expenses  alone,  in  the  case  of  estates 
of  limited  value,  are  burdensome  enough,  being  gen- 
erally much  larger  proportionately  than  for  large 
estates.26 

2*  Majer  v.  Grirna,  49  U.  S.  (8  How.)  490,  12  L.  Ed.  1168,  affirming 
12  Bob.  (La.)  584. 

25  Estate  of  Wilmerding,  117  Cal.'  281,  49  Pac.  181 ;  Estate  of  Stan- 
ford, 126  Cal.  112,  45  L.  B.  A.  788,  54  Pae.  259,  58  Pac.  462;  Estate 
of  Magnes,  32  Colo.  527,  77  Pac.  853;  Appeal  of  Nettleton,  76  Conn. 
235,  56  Atl.  565 ;  Ferry  v.  Campbell,  110  Iowa,  290,  50  L.  R.  A.  92,  81 
N.  W.  604;  State  v.  Hamlin,  86  Me.  495,  41  Am.  St.  Bep.  569,  25  L.  B. 
A.  632,  30  Atl.  76;  Minot  v.  Winthrop,  162  Mass.  113,  26  L,  B.  A.  259, 


CONSTITUTIONALITY   OP  STATUTES.  41 

§  25.  Exemption  of  Charities.— The  exemption 
from  inheritance  taxation  of  gifts  to  charitable,  edu- 
cational, or  religious  institutions,  while  perhaps  of 

38  N.  E.  512;  Union  Trust  Co.  v.  Wayne  Probate  Judge,  125  Mich. 
487,  84  N.  W.  1101;  State  v.  Bazille,  97  Minn.  11,  7  Ann.  Gas.  1056, 
6  L.  E.  A.,  N.  S.,  732,  106  N.  W.  93;  Gelsthorpe  v.  Furnell,  20  Mont. 
299,  39  L.  R.  A.  170,  51  Pac.  267;  Pullen  v.  Commissioners  of  Wake 
Co.,  66  N.  C.  361;  State  v.  Guilbert,  70  Ohio  St.  229,  71  N.  E.  636; 
State  v.  Alston,  94  Tenn.  674,  28  L.  R.  A.  178,  30  S.  W.  750;  State  v. 
Clark,  30  Wash.  439,  71  Pac.  20;  High  v.  Coyne,  93  Fed.  450. 

A  statute  exempting  transfers  of  personal  property  to  lineals  when 
it  falls  under  two  thousand  dollars  in  value,  and  taxing  the  whole 
amount  if  the  value  is  over  two  thousand  dollars,  is  not  unconstitutional: 
Estate  of  Fox,  154  Mich.  5,  117  N.  W.  558. 

In  State  v.  Guilbert,  70  Ohio  St.  229,  1  Ann.  Cas.  25,  71  N.  E.  636,  the 
court  says:  "The  specific  complaint  is  that  this  act  does  not  prescribe 
or  preserve  the  rule  of  equality  and  uniformity  of  burden  in  taxation 
prescribed  by  the  constitution,  in  that  it  exempts  from  its  operation 
all  inheritances  which  do  not  exceed  three  thousand  dollars  in  value, 
and  imposes  the  burden  on  such  as  are  above  that  sum.  We  think  there 
are  two  answers  to  this  objection:  The  person  who  inherits  six  thou- 
sand dollars  has  three  thousand  dollars  exempt;  the  person  who  inherits 
three  thousand  dollars  has  three  thousand  dollars  exempt.  They  are 
on  a  perfect  equality  in  that  regard.  The  same  reasoning  applies  where 
it  happens  that  the  smaller  inheritance  falls  below  three  thousand 
dollars.  As  well  might  it  be  urged  that  the  law  which  exempts  from 
execution  homesteads  of  the  heads  of  families  of  one  thousand  dollars 
in  value  is  invalid  on  the  ground  of  inequality  of  privilege,  because  one 
debtor's  homestead  may  not  reach  one  thousand  dollars  in  value,  while 
that  of  another  may.  It  is  to  be  borne  in  mind  that  the  act  does  not 
create  a  classification  of  persons  for  the  purpose  of  imposing  a  tax  on 
that  class.  It  is  not  a  tax  on  persons  at  all.  If  it  is  felt  more  by 
some  than  by  others,  this  is  owing  merely  to  the  fact  of  the  differing 
circumstances  which  surround  the  different  persons.  No  person  nor  no 
set  of  persons  is  selected  arbitrarily  or  otherwise  for  the  imposition  of 
burdens  or  for  relieving  of  burdens.  But  beyond  this,  when  it  is  deter- 
mined, as  it  was  determined  in  State  v.  Ferris,  53  Ohio  St.  314,  30 
L.  K.  A.  218,  41  N.  E.  579,  that  the  tax  is  an  excise  tax,  and,  as  in 
Hagerty  v.  State,  55  Ohio  St.  613,  45  N.  E.  1046,  that  the  authority  to 
impose  the  tax  is  conferred  by  the  general  grant  of  legislative  power, 
then  the  selection  of  the  subjects  on  which  the  tax  will  be  imposed  must 
be  within  the  legislative  competency.  Those  inheritances  which  do  not 
exceed  three  thousand  dollars  in  value  are  not  embraced  in  the  class 
included  within  the  purview  of  the  law,  and  unless  it  can  be  shown  that 
such  exclusion  results  in  a  violation  of  the  rights  of  those  who  are 
included,  or  that  such  discrimination  is  forbidden  by  some  provision  of 


42  INHERITANCE  TAXATION. 

doubtful  expediency,  is  a  matter  committed  to  the 
discretion  of  the  legislature;  and  all,  or  nearly  all,  of 
the  American  statutes  contain  this  exemption,  and 
their  constitutionality  has  not,  it  is  believed,  ever  been 

the  constitution,  the  discrimination  referred  to  is  not  unlawful.  We 
think  it  cannot  be  so  shown.  To  say  that  the  mere  fact  of  inclusion 
in  the  one  case  and  exclusion  in  the  other  constitutes  a  reason  for  hold- 
ing the  law  invalid  is  to  say  that  no  excise  tax  can  be  lawfully  laid 
upon  any  privilege  until  all  privileges  on  which  it  would  be  possible  to 
lay  such  tax  have  been  included  within  its  terms.  If  this  proposition 
were  established,  it  is  difficult  to  see  why  it  would  not  invalidate  all  the 
excise  laws  of  the  state,  many  of  which  have  been  subjected  to  judicial 
scrutiny  and  have  been  sustained." 

In  Minot  v.  Winthrop,  162  Mass.  113,  26  L.  K.  A.  259,  38  N.  E.  512, 
the  court  says:  "It  is  also  contended  that  the  tax  is  unreasonable  on 
account  of  the  exemption  contained  in  the  proviso  of  the  first  section 
of  the  statute,  that  no  estate  shall  be  subject  to  the  provisions  of  this 
act  unless  the  value  of  the  same,  after  the  payment  of  all  debts,  shall 
exceed  the  sum  of  ten  thousand  dollars.  In  all,  or  nearly  all,  systems  of 
taxation,  there  are  some  exemptions,  but  the  objection  here  is  that  estates 
whose  value,  after  payment  of  all  debts,  shall  not  exceed  ten  thousand 
dollars,  are  exempt,  without  regard  to  the  value  of  the  property  received 
by  the  devisees,  legatees,  heirs,  or  distributees.  It  is  argued  that  the 
excise,  if  upon  the  privilege  of  taking  property  by  will  or  descent, 
should  be  the  same  whenever  the  privilege  enjoyed  is  the  same,  in  kind 
and  extent,  whatever  may  be  the  value  of  the  estate,  and  that  the  ex- 
emptions should  relate  to  the  value  of  the  property  received  by  those 
who  have  the  privilege  of  receiving  it,  and  not  to  the  value  of  the 
estate.  But  the  right  or  privilege  taxed  can,  perhaps,  be  regarded  either 
as  the  right  or  privilege  of  the  owner  of  property  to  transmit  it  on  his 
death,  by  will  or  descent,  to  certain  persons,  or  as  the  right  or  privilege 
of  these  persons  to  receive  the  property.  The  tax,  too,  has  some  of 
the  characteristics  of  a  duty  on  the  administration  of  the  estates  of 
deceased  persons.  The  cost  of  administering  small  estates  is  propor- 
tionately greater  than  that  of  administering  large  ones,  and  this,  of 
itself,  particularly  in  intestate  estates,  operates  to  diminish  the  amounts 
received  very  much  as  a  tax  would.  The  statutes  of  the  different  states 
end  nations  which  have  levied  taxes  on  devises,  legacies,  and  inherit- 
ances have  usually  made  exemptions,  and  these  have  sometimes  related 
to  the  value  of  the  estates,  and  sometimes  to  the  value  of  the  property 
received  by  the  heirs,  devisees,  legatees,  or  distributees.  The  exemption 
in  the  statute  under  consideration  is  certainly  large  as  an  exemption 
of  estates;  but  it  is  peculiarly  within  the  discretion  of  the  legislature 
to  determine  what  exemptions  should  be  made  in  apportioning  the  bur- 
dens of  taxation  among  those  who  can  best  bear  them,  and  we  are  not 


CONSTITUTIONALITY  OP  STATUTES.  43 

denied.26  The  Missouri  statute,  imposing  a  collateral 
inheritance  tax,  but  exempting  bequests  for  charities 
without  limiting  the  amount  thereof,  does  not  violate 
the  provisions  of  the  constitution  of  that  state  which 
prohibits  laws  exempting  property  held  for  charitable 
purposes  from  taxation  in  excess  of  a  specified  amount, 
for  an  inheritance  tax  is  not  a  tax  on  property."  The 
statutes  of  other  states  have  been  held  not  unconstitu- 
tional because  excluding  foreign  charitable  corpora- 
tions from  the  exemption.28 

§  26.  Progressive  Rate  of  Taxation. — The  pro- 
gressive theory  of  inheritance  taxation,  whereby  the 
tax  rate  is  made  to  increase  with  the  value  of  the 
estate  transmitted,  has  come  into  especial  prominence 
since  its  adoption  by  Great  Britain  in  the  finance  act 
of  1894.  In  some  of  the  American  states  the  pro- 
gressive rate  is  applied  to  both  direct  and  collateral 
heirs,  while  in  others  it  is  applied  only  to  distant  rela- 
tives and  strangers.  Although  this  system  of  taxation 
results  in  a  measure  of  inequality,  it  is  supported  by 
the  authorities  generally,  and  is  not  repugnant  to 
constitutional  principles.  Authority  to  make  the  tax 
progressive  in  accordance  with  the  size  of  the  estate 

satisfied  that  this  exemption  is  so  clearly  unreasonable  as  to  require  us 
to  declare  the  statute  void." 

In  Black  v.  State,  113  Wis.  205,  90  Am.  St.  Rep.  853,  89  N.  W.  522, 
it  is  decided  that  when  a  statute  imposing  inheritance  taxes  under- 
takes to  exempt  therefrom  all  estates  whose  value  is  less  than  ten  thou- 
sand dollars,  the  beneficiaries  being  of  the  same  class,  and  the  tax  being 
levied  without  regard  to  the  amount  received  by  the  individual  bene- 
ficiary, the  classification  is  arbitrary,  and  the  statute  therefore  uncon- 
stitutional. 

2«  Thompson  v.  Kidder,  74  N.  H.  89,  12  Ann.  Gas.  948,  65  Atl.  392. 

27  State  v.  Henderson,  160  Mo.  190,  60  S.  W.  1093. 

28  Estate  of  Speed,  216  111.  23,  108  Am.  St.  Rep.  189,  74  N.  E.  809, 
affirmed  in  203  U.  S.  553,  8  Ann.  Cas.  157,  51  L.  Ed.  314,  27  Sup.  Ct. 
Rep.  171;  Humphreys  v.  State,  70  Ohio  St.  67,  101  Am.  St.  Rep.  888,  1 
Ann.  Cas.  233,  65  L.  R.  A.  776,  70  N.  E.  957. 


44  INHERITANCE  TAXATION. 

is  based  upon  the  wholesome  doctrine  that  the  ability 
to  pay  is  the  true  basis  of  all  taxation.29 

When  the  validity  of  a  progressive  tax  imposed  by 
federal  government  was  challenged  in  Knowlton  v. 
Moore,  the  supreme  court  observed:  "The  review 
which  we  have  made  exhibits  the  fact  that  taxes  im- 
posed with  reference  to  the  ability  of  the  person  upon 
whom  the  burden  is  placed  to  bear  the  same  have 
been  levied  from  the  foundation  of  the  government. 
So,  also,  some  authoritative  thinkers  and  a  number  of 
economic  writers  contend  that  a  progressive  tax  is 
more  just  and  equal  than  a  proportional  one.  In  the 
absence  of  constitutional  limitation,  the  question 
whether  it  is  or  is  not  is  legislative  and  not  judicial. 

29  State  v.  Handlin  (Ark.),  139  S.  W.  1112;  Estate  of  Magnes, 
32  Colo.  527,  77  Pac.  853;  Appeal  of  Nettleton,  76  Conn.  235,  56  Atl. 
565;  Kochersperger  v.  Drake,  167  111.  122,  41  L.  R.  A.  446,  47  N.  E. 
321;  Union  Trust  Co.  v.  Durfee,  125  Mich.  487,  84  N.  W.  1101;  State 
v.  Bazille,  97  Minn.  11,  7  Ann.  Gas.  1056,  6  L.  R.  A.,  N.  S.,  732,  106 
N.  W.  93;  State  v.  Vinsonhaler,  74  Neb.  675,  105  N.  W.  472;  State  v. 
Clark,  30  Wash.  439,  71  Pac.  20;  Nunnemacher  v.  State,  129  Wis.  190, 
9  Ann.  Cas.  711,  9  L.  R.  A.,  N.  S.,  121,  108  N.  W.  627. 

In  this  last  case  the  Wisconsin  court  said:  "The  question  has  been 
met  in  other  courts,  and  it  has  been  held  with  substantial  uniformity 
that  the  progressive  feature  does  not  violate  the  general  guaranties  of 
equality  and  equal  protection  of  the  laws  contained  in  the  various  state 
constitutions  and  in  the  fourteenth  amendment  to  the  constitution  of 
the  United  States:  Knowlton  v.  Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20 
Sup.  Ct.  Rep.  747.  The  decision  of  the  supreme  court  of  the  United 
States  as  to  the  force  of  the  fourteenth  amendment  is  necessarily  con- 
clusive; and,  as  the  general  equality  guaranties  of  our  own  constitution 
are  substantially  the  equivalent  of  the  equal  protection  of  the  laws 
guaranteed  by  the  fourteenth  amendment,  we  are  content  to  follow 
the  decisions  of  the  United  States  supreme  court,  and  hold  the  pro- 
gressive feature  does  not  violate  the  constitution." 

This  question  is  ably  discussed  by  the  South  Dakota  court  in  Estate 
of  McKennan  (S.  D.),  130  N.  W.  33,  where  it  is  held  that  a  method 
of  progression  whereby  the  higher  rate,  in  the  case  of  larger  estates, 
is  levied  upon  the  whole  value  of  the  property  transmitted,  rather  than 
merely  on  the  excess  in  value  over  the  amount  subject  to  the  next  lower 
rate,  does  not  violate  the  constitutional  requirement  that  all  taxation 
shall  be  equal  and  uniform. 


CONSTITUTIONALITY   OF   STATUTES.  45 

The  grave  consequences  which  it  is  asserted  must 
arise  in  the  future,  if  the  right  to  levy  a  progressive 
tax  be  recognized,  involves  in  its  ultimate  aspect  the 
mere  assertion  that  free  and  representative  govern- 
ment is  a  failure,  and  that  the  grossest  abuses  of  power 
are  foreshadowed  unless  the  courts  usurp  a  purely 
legislative  function.  If  a  case  should  ever  arise  where 
an  arbitrary  and  confiscatory  exaction  is  imposed 
bearing  the  guise  of  a  progressive  or  any  other  form 
of  tax,  it  will  be  time  enough  to  consider  whether  the 
judicial  power  can  afford  a  remedy  by  applying  in- 
herent and  fundamental  principles  for  the  protection 
of  the  individual,  even  though  there  be  no  express 
authority  in  the  constitution  to  do  so.  That  the  law 
which  we  have  construed  affords  no  ground  for  the 
contention  that  the  tax  imposed  is  arbitrary  and  con- 
fiscatory is  obvious."80 

§  27.  Double  Taxation  in  Case  of  Nonresidence. — 
It  not  infrequently  happens  that  personal  property 
suffers  a  species  of  double  taxation  by  reason  of  the 
circumstance  that  it  is  actually  situated  in  one  state 
while  the  owner  dies  domiciled  in  another  state.  In 
such  event  the  actual  situs  of  the  property  is  seized 
upon  by  the  first  state  as  warranting  the  imposition 
of  an  inheritance  tax,  and  the  legal  situs  of  the  prop- 
erty at  the  domicile  of  the  decedent  is  taken  as  author- 
izing the  imposition  of  another  inheritance  tax  by 
the  latter  state.  Indeed,  the  same  state  may  assume 
either  position,  as  the  domicile  of  the  deceased  or  the 
presence  of  his  personalty  within  the  state  may  re- 
quire, in  order  to  collect  the  tax.  This  form  of  double 
taxation,  however  unjust  it  may  seem,  and  into  what- 
ever inconsistencies  it  may  lead  the  taxing  author- 
so  Knowlton  v.  Moore,  178  U.  8.  41,  44  L.  Ed.  969,  20  Sup.  Ct.  Rep. 
747. 


46  INHERITANCE  TAXATION. 

ities,  is  not  opposed  to  constitutional  principles,81  but 
it  is  being  departed  from  in  some  of  the  states.  For 
instance,  the  West  Virginia  statute,  which  is  fairly 
representative  of  other  recent  statutes,  now  provides: 
"A  transfer  of  personal  property  of  a  resident  of 
the  state  which  is  not  therein  at  the  time  of  his  death 
shall  not  be  taxable,  under  the  provisions  of  this  act, 
if  such  transfer  or  the  property  be  legally  subject  in 
another  state  or  country  to  a  tax  of  a  like  character 
and  amount  to  that  hereby  imposed,  and  if  such  tax 
be  actually  paid,  or  guaranteed  or  secured,  in  accord- 
ance with  law  in  such  other  state  or  country;  if  legally 
subject  in  another  state  or  country  to  a  tax  of  like 
character,  but  of  less  amount  than  that  hereby  im- 
posed, and  such  tax  be  actually  paid,  or  guaranteed 
or  secured,  as  aforesaid,  the  transfer  of  such  property 
shall  be  taxable  under  this  act  to  the  extent  of  the 
difference  between  the  tax  thus  actually  paid,  guar- 
anteed or  secured,  and  the  amount  for  which  such 
transfer  would  otherwise  be  liable  hereunder.  A 
transfer  of  personal  property  of  a  nonresident  dece- 
dent which  is  within  this  state  at  the  time  of  his 
death,  if  subject  to  a  tax  of  a  like  character,  with  that 
imposed  by  this  act,  by  the  law  of  the  state  or  country 
of  his  residence,  shall  be  subject  only  to  such  portion 
of  the  tax  hereby  imposed  by  the  laws  of  such  state 
or  country;  provided,  a  like  exemption  is  made  by 
the  laws  of  such  other  state  or  country  in  favor  of 
estates  or  citizens  of  this  state,  and  the  transfer 
thereof,  but  no  such  exemption  shall  be  allowed  until 
such  tax  provided  for  by  the  law  of  such  other  state 
or  country  shall  be  actually  paid,  guaranteed  or 

si  Estate  of  Stanton,  142  Mich.  491,  106  N.  W.  1122;  Douglas  County 
v.  Kountze,  84  Neb.  506,  121  N.  W.  593;  Blackstone  v.  Miller,  188 
U.  S.  189,  47  L.  Ed.  439,  23  Sup.  Ct.  Eep.  277.  See  the  chapter  on 
"Situs  of  Property  for  Purposes  of  Taxation,"  post,  section  170  et 
seq. 


CONSTITUTIONALITY   OF   STATUTES.  47 

secured,  in  accordance  with  law.  A  receipt  or  cer- 
tificate from  the  officer  of  such  other  state  or  country 
charged  with  the  duty  of  collection  of  such  tax,  or 
the  acceptance  of  such  guaranty  or  security,  shall  be 
prima  facie  evidence  in  this  state  of  the  fact  of  such 
payment,  guaranty  or  security. ' ' 32 

§  28.  Detention  of  Property  in  Safe  Deposit. — 
There  are  statutes  which  forbid  safe  deposit  com- 
panies, on  the  death  of  a  lessee  of  a  box  or  safe, 
from  delivering  the  contents  to  his  heirs  or  personal 
representatives,  except  after  ten  days'  notice  to  the 
state  treasurer  and  attorney  general,  or  other  desig- 
nated officers  of  the  government,  and  requiring  such 
corporations  to  retain  a  sufficient  portion  of  such  con- 
tents to  pay  the  inheritance  tax  on  the  property  on 
deposit  or  in  safekeeping.  Failure  to.  obey  the  law 
renders  the  deposit  company  liable  for  the  tax  itself 
and  for  a  heavy  penalty  besides.  These  statutes  are 
not  unconstitutional  as  applied  to  safe  deposit  com- 
panies and  other  corporations  doing  a  similar  busi- 
ness. Nor  are  they  unconstitutional  when  applied  to 
lessees  of  safe  deposit  boxes  and  their  heirs  and  rep- 
resentatives, even  in  cases  where  boxes  are  rented 
jointly  by  two  or  more  persons  or  by  a  partnership, 
and  one  of  the  partners  or  joint  lessees  dies.  The 
enforcement  of  the  law  may  result  in  delay  and  incon- 
venience to  heirs  and  legatees,  but  delay  is  necessarily 
incident  to  the  settlement  and  distribution  of  the 
estate  of  a  decedent.  And  when  the  interests  of  the 
state  are  considered,  it  does  not  seem  unreasonable 
that  it  should,  through  its  proper  representative,  be 
given  opportunity  to  protect  itself  from  loss  of  rev- 
enue through  the  withdrawal  and  concealment  or 
transfer  of  securities  and  other  valuable  assets.  The 

»2  See  West  Virginia  statute,  post. 


48  INHERITANCE  TAXATION. 

heirs  and  legatees  are  not  the  only  parties  interested. 
The  money  received  by  the  state  in  the  form  of  inherit- 
ance taxes  constitutes  a  part  of  the  public  revenue, 
and  the  right  of  the  state  to  those  taxes  vests,  in 
point  of  time,  at  the  time  the  estate  vests,  that  is, 
upon  the  death  of  the  decedent.  Therefore,  the  state 
has  a  vested  financial  right  in  the  estate  of  every 
deceased  person  which  is  subject  to  the  payment  of 
the  inheritance  tax,  and  this  right  is  equal  in  degree 
to  that  of  the  personal  representatives,  the  heirs,  or 
the  legatees  of  the  decedent,  and  it  vests  at  the  same 
moment  of  time  when  their  interests  vest.  Statutory 
provisions  which  require  the  representative  of  the 
state  to  have  notice  of  the  time  when  property  held 
by  safe  deposit  companies,  the  former  owners  of 
which  are  deceased,  is  to  be  surrendered  and  removed 
and  delivered  to  the  personal  representative,  heir  or 
legatee  of  the  decedent,  are  not  an  unreasonable  meas- 
ure for  the  protection  of  the  state  from  the  loss  of 
property  to  which  it  has  a  vested  right;  and  they  do 
not  invade  the  constitutional  rights,  either  of  the  safe 
deposit  companies  or  of  the  representatives,  heirs,  and 
legatees.33 

83  National  Safe  Deposit  Co.  v.  Stead,  250  HI.  584,  Ann.  Gas.  1912B, 
,  95  N.  E.  973. 


INTERPRETATION   OF  STATUTES  49 


CHAPTER  III. 
INTERPRETATION  OF  STATUTES. 

§  33.  Statutes  Adopted  from  Another  State. 

§  34.  Statutes  in  Pari  Materia. 

§  35.  Strict  or  Liberal  Construction. 

§  36.  Law  Governing  Tax — Retrospective  Operation. 

§  37.  Constitutionality  of  Tax  Imposed  Pending  Administration. 

§  38.  Law  Governing  Estates  in  Eemainder. 

§  39.  Law  Governing  Remainders — Constitutional  Questions. 

§  40.  Law  Governing  Powers  of  Appointment. 

§  41.  Amendatory  Act. 

§  42.  Curative  Act. 

§  43.  Repeal  and  Re-enactment  of  Statute. 

g  44.  Repeal  of  United  States  Statute. 

§  33.  Statutes  Adopted  from  Another  State. — It  is 
a  familiar  canon  of  construction  that  when  one  state 
adopts  a  statute  of  another  state  it  is  presumed  to 
adopt  the  construction  previously  placed  upon  the 
statute  by  the  courts  of  the  latter,  but  is  not  bound 
by  their  decisions  rendered  after  the  adoption  of  the 
statute.  Such  subsequent  decisions  will  be  given  re- 
spectful consideration,  but  they  are  persuasive  only, 
and  entitled  to  no  greater  weight  than  may  be  due  to 
the  reasoning  found  therein.1  These  rules  are  ap- 
plicable where  one  state  adopts  the  inheritance  tax 
statute  of  another  state.2  And  where  the  provisions 
of  the  inheritance  tax  statutes  of  two  states  are  in 
substance  the  same,  the  decisions  of  the  courts  of  one 

i  Germania  Life  Ins.  Co.  v.  Ross-Lewin,  24  Colo.  43,  65  Am.  St.  Rep. 
215,  51  Pac.  488;  Nicollet  Nat.  Bank  v.  City  Bank,  38  Minn.  85,  8  Am. 
St.  Rep.  643,  85  N.  W.  577;  Pratt  v.  Miller,  109  Mo.  78,  32  Am.  St. 
Rep.  656,  18  S.  W.  965;  Stadler  v.  First  Nat.  Bank,  22  Mont.  190,  74 
Am.  St.  Rep.  582,  56  Pac.  Ill;  In  re  O'Connor,  21  R.  I.  465,  79  Am. 
St.  Rep.  814,  44  Atl.  591;  Wyoming  Coal  Min.  Co.  v.  State,  15  Wyo. 
97,  123  Am.  St.  Rep.  1014,  87  Pac.  337,  984. 

*  People  v.  Griffith,  245  111.  532,  92  N.  E.  313;  Miller  T.  McLaughlin, 
141  Mich.  425,  104  N.  W.  777. 
A 


50  INHERITANCE  TAXATION. 

of  the  states  construing  the  law  will  be  resorted  to  by 
the  courts  of  the  other  state  for  aid  in  reaching  the 
proper  interpretation  to  be  placed  upon  the  law.3 

§  34.  Statutes  in  Pan  Materia. — Another  well- 
recognized  rule  of  construction  is,  that  when  divers 
statutes  relate  to  the  same  thing,  all  should  be  taken 
into  consideration  in  construing  any  one  of  them; 
acts  in  pari  materia  are  to  be  taken  together  as  if 
they  were  one  law.4  And  statutes  on  cognate  sub- 
jects, though  not  strictly  in  pari  materia,  may  be  re- 
ferred to  in  order  to  elucidate  the  intention  of  the 
legislature  in  enacting  any  given  statute.5  Accord- 
ingly, it  has  been  contended  that  when  there  has  been 
no  previous  decision  in  the  state  on  a  question  in- 
volved in  the  interpretation  of  an  inheritance  tax  stat- 
ute, such  as  the  situs  of  the  property,  the  rulings  of 
the  highest  court  of  the  state  on  the  general  tax  laws 
should  be  not  only  persuasive  but  controlling.  But 
the  Illinois  court  has  held  against  this  contention, 
saying:  "One  of  the  chief  reasons  given  in  support  of 
the  legality  of  inheritance  taxes  has  been  that  they 
are  not  'taxes'  in  the  strict  sense  of  the  term.  This 
law  has  no  relation  to  the  general  revenue  law.  The 

a  State  v.  Pabst,  139  Wis.  561,  121  N.  W.  351. 

*  Pryor  v.  Winter,  147  Cal.  554,  109  Am.  St.  Eep.  162,  82  Pac.  202; 
Wilson  v.  I>pnaldson,  117  Ind.  356,  10  Am.  St.  Rep.  48,  3  L.  E.  A.  266, 
20  N.  E.  250;  Buss  v.  Commonwealth,  210  Pa.  544,  105  Am.  St.  Eep. 
825,  1  L.  E.  A.,  N.  S.,  409,  60  Atl.  169. 

"Statutes  are  in  pari  materia  which  relate  to  the  same  person  or  thing, 
or  to  the  same  class  of  persons  or  things.  The  word  'par'  must  not 
be  confounded  with  the  term  'similis.'  It  is  used  in  opposition  to  it,  as 
in  the  expression  'magis  pares  sunt  quam  similes;  intimating  not  like- 
ness merely,  but  identity.  It  is  a  phrase  applicable  to  the  public 
statutes  or  general  laws,  made  at  different  times  and  in  reference  to 
the  same  subject":  United  Society  v.  Eagle  Bank,  7  Conn.  456,  468. 

6  State  v.  Frederickson,  101  Me.  37,  115  Am.  St.  Eep.  295,  8  Ann. 
Cas.  48,  6  L.  E.  A.,  N.  S.,  186,  63  Atl.  535 ;  St.  Louis  v.  Howard,  119 
Mo.  41,  41  Am.  St.  Eep.  630,  24  S.  W.  770. 


INTERPRETATION  OP  STATUTES.  51 

two  acts  cannot  be  held  to  be  in  pari  materia.  'While 
the  object  of  both  is  to  raise  revenue  for  the  support 
of  the  government,  they  have  nothing  else  in  common.' 
They  were  passed  at  different  times,  and  upon  entirely 
different  theories.  One  taxes  the  property  itself,  and 
the  other  the  right  of  succession  to  the  property. ' ' 6 

§  35.  Strict  or  Liberal  Construction. — The  state- 
ment is  not  infrequently  met  with,  in  the  opinions  of 
courts,  that  inheritance  tax  laws  should  be  construed 
strictly  against  the  government  and  liberally  in  favor 
of  the  taxpayer;  that  the  government  is  bound  to  ex- 
press its  intention  to  tax  in  clear  and  unambiguous 
language;  and  that  in  case  of  doubt  or  ambiguity  aris- 
ing on  the  terms  of  the  statute,  every  intendment  is 
indulged  against  the  taxing  power.7  No  satisfactory 
reason,  however,  has  been  advanced  for  such  a  rule, 
and  it  is  doubtful,  indeed,  whether  the  rule  has,  to 
any  considerable  extent,  been  observed.  One  would 
suppose  that  such  laws,  like  any  other  statutes,  should 
be  given  a  reasonable  and  liberal  interpretation  with 
a  view  to  effectuate  the  intention  of  the  legislature. 
And  it  is  gratifying  to  note  that  whatever  the  courts 
may  have  said  on  this  question,  they  have,  in  fact, 
generally  given  inheritance  tax  statutes  a  liberal  con- 

•  People  v.  Griffith,  245  111.  532,  92  N.  B.  313. 

T  People  v.  Koenig,  37  Colo.  283,  11  Ann.  Gas.  14O,  85  Pac.  1129; 
Matter  of  Stewart,  131  N.  Y.  274,  14  L.  B.  A.  836,  30  N.  E.  184;  Estate 
of  Harbeck,  161  N.  Y.  211,  55  N.  E.  850;  Estate  of  Kimberly,  27  App. 
Div.  470,  50  N.  Y.  Supp.  586;  Estate  of  Kerr,  159  Pa.  512,  28  Atl. 
354;  Bailey  v.  Henry  (Tenn.),  143  S.  W.  1124;  Eidman  v.  Martinez, 
184  U.  S.  578,  46  L.  Ed.  697,  22  Sup.  Ct.  Rep.  515;  Disston  v.  McClain, 
147  Fed.  114,  77  C.  C.  A.  340;  Lynch  v.  Union  Trust  Co.,  164  Fed.  161, 
90  C.  C.  A.  147. 

The  rule  of  strict  construction,  ordinarily  applied  to  the  operation  and 
effect  of  a  statute  imposing  a  tax  and  to  proceedings  thereunder,  does 
not  apply  to  the  Minnesota  statute  imposing  a  tax  on  inheritances :  State  v. 
Bazille,  97  Minn.  11,  7  Ann.  Cas.  1056,  6  L.  E.  A.,  N.  S.,  732,  106  N.  W. 
93. 


52  INHERITANCE  TAXATION. 

struction  in  favor  of  the  government  by  subjecting  to 
taxation  every  transfer  that  could  reasonably  be 
brought  within  the  purview  of  the  law,  as  the  decisions 
will  hereinafter  abundantly  attest. 

Said  the  New  York  court  of  appeals,  in  construing 
the  statute  of  that  state:  "It  was  undoubtedly  the 
intent  of  the  legislature  that  the  statute  under  con- 
sideration should  be  liberally  construed,  to  the  end 
of  taxing  the  transfer  of  all  property  which  fairly  and 
reasonably  could  be  regarded  as  subject  to  the  same, 
and  this  court  has  unequivocally  placed  itself  upon 
record  in  favor  of  construing  the  statute  in  the  light 
of  such  intent. ' ' 8  This  language  correctly  reflects 
the  attitude  of  the  New  York  courts  and  legislature 
on  this  question,  for  it  seems  to  have  been  the  policy 
of  that  state  to  exert  its  taxing  power  over  inheritance 
to  the  utmost  and  to  allow  no  transfers  to  escape  the 
imposition  of  a  tax  unless  the  statute  clearly  exempts 
them.  And  this  policy  is  by  no  means  confined  to 
the  state  of  New  York  alone. 

§  36.  Law  Governing  Tax — Retrospective  Opera- 
tion.— The  rights  and  obligations  of  all  parties  in  re- 
gard to  the  payment  of  an  inheritance  tax  are  ordi- 
narily determinable  as  of  the  time  of  the  death  of  the 
decedent.  It  is  at  that  time  that  the  title  to  the  prop- 
erty passes  to  the  heirs,  devisees  and  legatees,  and  that 
the  right  of  the  public  to  the  tax  accrues,  although 
actual  enjoyment  is  postponed  by  the  delays  incident 
to  the  administration  of  the  estate.  The  occasion  for 
the  tax  being  the  devolution  of  property,  it  should 
usually  attach  to  such  interests  only  as  arise  by  reason 
of  a  death  subsequent  to  the  passage  of  the  act  impos- 
ing the  tax.  The  statute  is  not  given  a  retrospective 

»  Estate  of  Gordon,  186  N.  Y.  471,  10  L.  B.  A.,  N.  S.,  1089,  79  N.  E. 
722. 


INTERPRETATION  OP  STATUTES.  53 

operation,  so  as  to  reach  estates  of  persons  who  have 
died  before  its  enactment,  unless  its  terms  clearly 
demand  such  an  interpretation.9  But  the  method  of 

»  Winn  v.  Schenck,  33  Ky.  Law  Rep.  615,  110  S.  W.  827;  Succession 
of  Deyraud,  9  Rob.  (La.),  357;  Succession  of  Becker,  118  La.  1056,  43 
South.  701,  Howe  v.  Howe,  179  Mass.  546,  55  L.  R.  A.  626,  61  N.  E.  225; 
McCurdy  v.  McCurdy,  197  Mass.  248,  14  Ann.  Cas.  859,  16  L.  R.  A., 
N.  S.,  329,  83  N.  E.  881;  Pierce  v.  Stevens,  205  Mass.  219,  91  N.  E. 
319;  Carter  v.  Whitcomb,  74  N.  H.  482,  17  L.  R.  A.,  N.  S.,  733,  69  Atl. 
779;  Estate  of  Hartman,  70  N.  J.  Eq.  664,  62  Atl.  560;  Matter  of  Pell, 
171  N.  Y.  48,  89  Am.  St.  Rep.  791,  57  L.  R.  A.  540,  63  N.  E.  789; 
Matter  of  Lansing,  182  N.  Y.  238,  74  N.  E.  882;  Estate  of  Ramsdill, 
190  N.  Y.  492,  18  L.  R.  A.,  N.  S.,  946,  83  N.  E.  584;  In  re  Forsyth, 
10  Misc.  Rep.  477,  32  N.  Y.  Supp.  175 ;  Eury  v.  State,  72  Ohio  St.  448, 
74  N.  E.  650;  Pennsylvania  Co.  for  Ins.  etc.  v.  McLain,  105  Fed.  367, 
affirmed  in  108  Fed.  618,  47  C.  C.  A.  529;  Carpenter  v.  Pennsylvania, 
58  U.  S.  (17  How.)  456,  15  L.  Ed.  127. 

The  provisions  of  the  Louisiana  constitution  and  statutes  touching  the 
liability  for  an  inheritance  tax  do  not  extend  or  reach  back  to  condi- 
tions anterior  to  the  constitution  itself.  The  constitution  looks  to  the 
present  and  to  the  future,  not  to  the  past:  Succession  of  Westfeldt,  122 
La.  836,  48  South.  281. 

The  present  statute  (1905)  of  Minnesota  has  no  application  to  prop- 
erty which  was  actually  sold  and  disposed  of  prior  to  the  time  of  its 
enactment:  State  v.  Probate  Court  of  Washington  County,  102  Minn. 
268,  113  N.  W.  883. 

The  Iowa  statute  reads:  "All  property  ....  which  shall  pass  by 
will,  or  by  the  intestate  laws  of  this  or  any  other  state,  or  by  deed, 
grant,  sale,  or  gift  made  or  intended  to  take  effect  in  possession  or 
enjoyment  after  the  death  of  the  grantor  or  donor,"  to  persons  other 
than  those  described,  "shall  be  subject  to  a  tax The  tax  afore- 
said shall  be  and  remain  a  lien  on  such  estate  from  the  death  of  the 
decedent  until  paid."  Said  the  Iowa  court,  in  construing  this  statute, 
"the  only  fair  construction  to  be  given  this  language  is  that  it  refers 
to  property  which  shall  thereafter  pass,  and,  if  so,  the  tax  is  not  exacted 
on  any  which  has  been  previously  transferred  by  any  of  the  modes  men- 
tioned. It  is  not  material  to  this  inquiry  whether  we  say  the  property 
is  taxed  because  of  the  succession  thereto  by  collateral  heirs,  or  that 
the  right  of  succession  merely  is  taxed;  for  in  either  event  the  right 
to  the  property  attached  eo  instante  upon  the  decedent's  death,  and  is 
not  within  the  terms  of  the  statute.  This  view  is  in  harmony  with  the 
construction  usually  given  similar  enactments":  Gilbertson  v.  Ballard, 
125  Iowa,  420,  2  Ann.  Cas.  607,  101  N.  W.  108. 

The  collateral  inheritance  tax  law  of  Iowa  contains  no  provisions 
making  it  retrospective,  or  applicable  to  any  interest  in  property  which 
became  vested  prior  to  its  taking  effect,  even  though  such  interests  may 


54  INHERITANCE  TAXATION. 

procedure  for  the  ascertainment  and  determination  of 
the  tax  is  controlled  by  the  statute  in  force  at  the  time 
of  the  institution  of  the  proceeding,  although  the  tax 
itself  and  the  rights  of  the  parties  are  controlled  by 
an  earlier  statute.9* 

It  has  been  held  that  a  statute  imposing  a  collateral 
inheritance  tax  does  not  apply  to  property  devised  by 
one  who  dies  before  the  statute  takes  effect,  but  whose 
will  is  not  filed  for  probate  until  after  that  time ; 19 
and  that  personal  property  of  a  nonresident  who  dies 
before  the  tax  law  becomes  operative  is  not  subject 
thereto,  although  the  property  remains  within  the 
state  until  after  that  time.11 

It  has  been  decided  that  an  inheritance  tax  statute 
has  no  application  to  interests  in  land  passing  to  heirs 
prior  to  its  taking  effect,  although  the  heirs  have  not 
asserted  their  rights  or  gone  into  possession  until  after 
the  statute  has  gone  into  effect;  and  that  bequests  of 
personal  property,  made  in  a  will  probated  before  the 
taking  effect  of  the  statute,  are  not  subject  to  the  tax, 
although  the  estate  may  remain  unsettled  and  the 
legacies  unpaid  until  after  the  statute  has  become 
operative.12 

be  subject  to  conditions  or  contingencies  which  will  affect  their  future 
enjoyment:  Morrow  v.  Depper  (Iowa),  133  N.  W.  729. 

Where  there  is  a  statute  imposing  a  succession/  tax  enacted  before 
the  death  of  a  decedent,  and  another  enacted  afterward,  the  former 
controls:  State  v.  Switzler,  143  Mo.  287,  65  Am.  St.  Rep.  653,  40  L.  E.  A. 
280,  45  S.  W.  245. 

The  amount  of  a  collateral  inheritance  tax  to  be  paid  by  those  suc- 
ceeding to  an  estate  is  to  be  determined  by  the  statute  in  force  at  the 
time  of  the  death  of  the  decedent:  Estate  of  Woodward,  153  Cal.  39,  94 
Pac.  242. 

»»  Estate  of  Jarvis,  149  N.  Y.  539,  44  N.  E.  185;  Estate  of  Sloane, 
159  N.  Y.  109,  47  N.  E.  978. 

10  In  re  Collateral  Inheritance  Tax,  88  Me.  587,  34  Atl.  530. 

11  Estate  of  Pettit,  65  App.  Div.  30,  72  N.  Y.  Supp.  469,  affirmed 
in  171  N.  Y.  654,  63  N.  E.  1121. 

«  Herriott  v.  Potter,  115  Iowa,  648,  89  N.  W.  91;  Gilbertson  v. 
Ballard,  125  Iowa,  420,  2  Ann.  Cas.  607,  101  N.  W.  108;  Lacey  v.  State 


INTERPRETATION  OP  STATUTES.  55 

§  37.  Constitutionality  of  Tax  Imposed  Pending 
Administration. — It  is  well  understood  that  on  the 
death  of  the  owner  of  property  the  title  thereto  is 
cast  immediately  upon  his  heirs  or  devisees.  The  dis- 
tributive shares,  although  their  amount  may  be  un- 
certain, the  time  of  their  enjoyment  contingent,  an$ 
their  full  enjoyment  postponed  by  the  process  of 
administration,  vest  instantly  in  the  beneficiaries  of 
the  decedent  upon  his  death.  It  may  therefore  seem 
that  after  the  title  to  property  has  thus  vested  in 
heirs  or  devisees,  free  from  an  inheritance  tax,  that 
an  attempt  by  the  legislature  thereafter  to  impose 
such  a  tax  before  distribution  of  the  estate  would  be 
opposed  to  constitutional  principles.  And  yet  when 
it  is  remembered  that  the  tax  is  on  the  privilege  of 
succession,  that  such  privilege  exists  only  by  virtue  of 
legislative  permission  and  protection,  that  the  priv- 
ilege is  not  fully  exercised  nor  the  right  to  the 
enjoyment  of  the  property  fully  realized  until  the 
administration  of  the  estate  is  closed,  it  would  seem 
that  the  legislature  has  authority  to  put  in  operation 
such  a  tax  after  the  death  of  the  decedent  but  before 
the  estate  is  distributed.  In  fact,  it  has  been  recog- 
nized by  a  number  of  courts  that  an  inheritance  can 
be  imposed  by  act  of  the  legislature  pending  the  set- 
tlement of  the  estate  and  prior  to  delivery  to  the 
distributees,  without  interfering  with  vested  rights  or 
violating  the  rule  of  due  process  of  law.13  The  Iowa 

Treasurer   (Iowa),  132    N.  W.  843;    Estate  of  Cogswell,  4  Dem.  Sur. 
(N.  Y.)   248. 

is  Succession  of  Levy,  115  La.  377,  5  Ann.  Gas.  871,  8  L.  R.  A.,  N.  S., 
1180,  39  South.  37,  affirmed  in  Cahen  v.  Brewster,  203  U.  S.  543,  8  Ann.  Gas. 
215,  51  L.  Ed.  313, 27  Sup.  Ct.  Rep.  174;  Succession  of  Stauffer,  119  La.  66, 
43  South.  928;  Gelsthorpe  v.  Furnell,  20  Mont.  299,  39  L.  R.  A.  170,  51 
Pac.  267;  Estate  of  Vanderbilt,  50  App.  Div.  246,  63  N.  Y.  Supp.  1079, 
affirmed  in  163  N.  Y.  597,  57  N.  E.  1127;  Estate  of  Short,  16  Pa.  63; 
Estate  of  Howard,  80  Vt.  489,  68  Atl.  513.  Several  of  the  above  deci- 
sions are  cited  in  the  recent  case  of  Attorney  General  v.  Stone,  209  Mass. 


56  INHERITANCE  TAXATION. 

court  has  admitted  that  this  is  true  in  regard  to  per- 
sonal property,  but  doubts  whether  it  can  be  applied 
to  real  estate,  under  the  common-law  notion,  still 
prevalent  in  some  jurisdictions,  that  although  real 
property  vests  in  the  heirs  instantly  on  the  death  of 
the  ancestor,  personal  property  is  held  in  abeyance  in 
the  hands  of  the  executor  or  administrator.14  In  a 
recent  opinion16  of  the  Iowa  court  is  a  dictum  approv- 
ing the  holding  of  the  New  York  court  of  appeals, 
that  a  statute  imposing  a  succession  or  transfer  tax 
upon  estates  which  vested  prior  to  its  enactment  is 
unconstitutional,  as  diminishing  the  value  of  vested 
estates,  impairing  the  obligation  of  contract,  and 
taking  private  property  for  public  use  without  com- 
pensation.10 

Said  the  supreme  court  of  the  United  States  in 
Cahen  v.  Brewster: "  "The  tax  was  defined  in  the 
Perkins  case  18  to  be  'not  a  tax  upon  the  property  itself, 
but  upon  its  transmission  by  will  or  descent';  and  in 
the  Magoun  case,19  'not  one  on  property,  but  one  on 
the  succession.'  In  Knowlton  v.  Moore20  it  was  said 
that  such  taxes  'rest  in  their  essence  upon  the  prin- 

186,  95  N.  E.  395,  where  the  Massachusetts  statute  of  1902,  regulating 
the  assessment  of  collateral  taxes  as  to  estates  limited  after  a  preceding 
estate,  is  held  to  operate  retrospectively  as  well  as  prospectively.  See 
also,  L/acey  v.  State  Treasurer  (Iowa),  121  N.  W.  179,  132  N.  W.  843. 

i*  Ferry  v.  Campbell,  110  Iowa,  290,  50  L.  E.  A.  92,  81  N.  W.  604; 
Herriott  v.  Potter,  115  Iowa,  648,  89  N.  W.  91. 

is  Lacey  v.  State  Treasurer  (Iowa),  132  N.  W.  843. 

18  Matter  of  Pell,  171  N.  Y.  48,  89  Am.  St.  Eep.  791,  57  L.  B.  A. 
540,  63  N.  E.  789;  Matter  of  Chapman,  133  App.  Div.  337,  117  N.  Y. 
Supp.  679. 

IT  Cahen  v.  Brewster,  203  U.  S.  543,  8  Ann.  Cas.  215,  51  L.  Ed.  313, 
27  Sup.  Ct.  Eep.  174. 

is  United  States  v.  Perkins,  163  U.  S.  625,  41  L.  Ed.  287,  16  Sup. 
Ct.  Eep.  1073. 

i»  Magoun  v.  Illinois  Trust  &  Sav.  Bank,  170  U.  S.  283,  42  L.  Ed. 
1037,  18  Sup.  Ct.  Eep.  594. 

20  Knowlton  v.  Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20  Sup.  Ct.  Eep. 
747. 


INTERPRETATION  OF  STATUTES.  57 

ciple  that  death  is  the  generating  source  from  which 
the  particular  taxing  power  takes  its  being,  and  that 
it  is  the  power  to  transmit,  or  the  transmission  from 
the  dead  to  the  living,  on  which  such  taxes  are  more 
immediately  rested.'  But  these  definitions  were  in- 
tended only  to  distinguish  the  tax  from  one  on  prop- 
erty, and  it  was  not  intended  to  be  decided  that  the 
tax  must  attach  at  the  instant  of  the  death  of  a  testa- 
tor or  intestate.  In  other  words,  we  defined  the  nature 
of  the  tax;  we  did  not  prescribe  the  time  of  its  im- 
position. To  have  done  the  latter  would  have  been 
to  prescribe  a  rule  of  succession  of  estates,  and  usurp 
a  power  we  did  not  and  do  not  possess.  There  is  noth- 
ing, therefore,  in  those  cases  which  restrains  the  power 
of  the  state  as  to  the  time  of  the  imposition  of  the 
tax.  It  may  select  the  moment  of  death,  or  it  may 
exercise  its  power  during  any  of  the  time  it  holds  the 
property  from  the  legatee.  'It  is  not,'  we  said  in  the 
Perkins  case,21  'until  it  has  yielded  its  contribution  to 
the  state  that  it  becomes  the  property  of  the  legatee. '  ' 
This  decision  was  rendered  of  the  statute  of  Louisiana, 
and  under  the  law  of  that  state  the  legacies  in  ques- 
tion passed  to  the  legatees  upon  the  death  of  the 
testator. 

§  38.  Law  Governing  Estates  in  Remainder. — The 
question  as  to  what  law,  in  point  of  time,  governs  the 
imposition  of  inheritance  taxes  on  estates  in  remainder 
has  frequently  been  before  the  New  York  courts  for 
determination.  It  has  been  decided  in  that  state,  and 
in  some  others,  that  estates  in  remainder  are  taxable 
as  of  the  time  of  the  death  of  the  donor,  notwith- 
standing the  actual  possession  or  enjoyment  by  the 
beneficiary  is  postponed  until  the  expiration  of  the 
life  -estate  and  may  perhaps  fail  entirely ;  and  if  there 

«  United  States  v.  Perkins,  163  U.  S.  625,  41  L.  Ed.  287,  16  Sup. 
Ct.  Eep.  1073. 


58  INHERITANCE  TAXATION. 

is  no  statute  imposing  a  tax  at  the  time  of  such 
death,  the  transfer  is  immune  from  taxation.22 

"It  is  now  well  settled,"  to  quote  from  the  supreme 
court  of  New  York,  "that  the  tax  is  upon  the  trans- 
fer of  the  property,  upon  the  right  of  succession,  not 
upon  the  property  itself;  that  'transfer'  means  the 
passing  of  property,  or  of  any  interest  therein,  in 
possession  or  enjoyment,  present  or  future,  without 
regard  to  whether  the  actual  possession  and  enjoyment 
follows  immediately  or  comes  at  some  future  time; 
that  where  a  vested,  though  defeasible,  interest  in  re- 
mainder passes  under  a  will  to  the  remainderman  on 
the  testator's  death,  though  the  possession  does  not 
pass  until  the  death  of  the  life  tenant,  the  transfer  or 
succession  is  referred  to  the  time  of  the  death  of  the 
testator,  and  if  that  occurred  prior  to  the  enactment  of 
the  act  taxing  transfers  of  property,  the  remainder  is 
not  taxable."  23 

Referring  to  this  question  the  supreme  court  of 
Iowa,24  in  a  recent  decision,  uses  this  language:  "It 
has  been  held  without  any  apparent  conflict  in  the 
authorities  that  an  interest  in  property  created  by  will 
or  deed  in  the  nature  of  a  remainder  becomes  a  vested 
interest  from  the  time  the  will  or  deed  takes  effect, 

23  Commonwealth  v.  Stoll,  132  Ky.  234,  114  8.  W.  279,  116  S.  W. 
687;  Miller  v.  McLaughlin,  141  Mich.  425,  104  N.  W.  777;  Estate  of 
Pell,  171  N.  Y.  48,  89  Am.  St.  Rep.  791,  57  L.  R.  A.  540,  63  N.  E.  789; 
Estate  of  Langdon,  11  App.  Div.  220,  43  N.  Y.  Supp.  419,  affirmed  in 
153  N.  Y.  6,  46  N.  E.  1034;  Estate  of  Craig,  97  App.  Div.  289,  89  N.  Y. 
Supp.  971,  affirmed  in  181  N.  Y.  551,  74  N.  E.  1116;  Estate  of  Back- 
house, 110  App.  Div.  737,  96  N.  Y.  Supp.  466,  185  N.  Y.  544,  77  N.  E. 
1181;  Estate  of  Haggerty,  128  App.  Div.  479,  112  N.  Y.  Supp.  1017, 
affirmed  in  194  N.  Y.  550,  87  N.  E.  1120. 

2s  Estate  of  Hitchins,  43  Misc.  Eep.  485,  89  N.  Y.  472  (affirmed  in 
101  App.  Div.  612,  92  N.  Y.  Supp.  1128,  181  N.  Y.  553,  74  N.  E.  1118), 
citing  Matter  of  Seaman,  147  N  Y.  69,  41  N.  E.  401 ;  Matter  of  Stewart, 
131  N.  Y.  274,  14  L.  E.  A.  836,  30  N.  E.  184;  Matter  of  Curtis;  142 
N.  Y.  219,  36  N.  E.  887 ;  Matter  of  Langdon,  153  N.  Y.  6,  46  N.  E.  1034. 

2*  Lacey  v.  State  Treasurer  (Iowa),  132  N.  W.  843. 


INTERPRETATION  OP  STATUTES.  59 

and  that  a  subsequent  collateral  inheritance  tax  stat- 
ute has  no  application  to  it.  Thus,  where  a  will 
creates  a  remainder  subject  to  a  life  estate,  with  an 
added  power  given  to  the  life  tenant  to  dispose  of 
the  property  if  he  shall  elect  to  do  so,  the  interest  of 
the  remainderman  is  vested  as  against  a  subsequent 
inheritance  tax  statute,  although  it  may  not  be  pos- 
sible to  determine  until  the  end  of  the  life  estate,  and 
after  the  taking  effect  of  the  statute,  what  portion,  if 
any,  of  the  property  will  be  left  for  enjoyment  by  the 
remainderman:  Estate  of  Langdon;  Estate  of  Lansing; 
Winn  v.  Schenck.28  Even  though  the  remainder  is  so 
far  conditional  that  it  may  have  to  be  opened  up  to 
let  in  after-born  children,  and,  on  the  other  hand,  may 
be  devested  by  death  without  issue  of  the  person 
named,  nevertheless  it  constitutes  a  vested  interest, 
not  subject  to  a  subsequent  collateral  inheritance  tax 
statute,  passed  before  the  termination  of  the  life 

estate:  Estate  of  Seaman."28 

i 

§  39.  Law  Governing  Remainders — Constitutional 
Questions. — This  statement  accurately  reflects  the  law 
as  interpreted  by  the  courts  of  New  York.  In  fact,  it 
has  been  decided  in  that  state  that  a  statute  providing 
for  an  inheritance  tax  on  remainders  and  reversions 
which  have  already  vested,  upon  their  coming  into 
actual  enjoyment  or  possession,  is  unconstitutional 
because  it  diminishes  the  value  of  vested  estates,  im- 
pairs the  obligation  of  a  contract,  and  takes  private 
property  for  public  use  without  compensation.27  The 
soundness  of  this  doctrine  is  not  entirely  free  from 

28  Estate  of  Langdon,  153  N.  Y.  6,  46  N.  E.  1034 ;  Estate  of  Lansing, 
182  N.  Y.  238,  74  N.  E.  882;  Winn  v.  Schenck,  33  Ky.  Law  Rep.  615, 
110  S.  W.  827. 

2«  Estate  of  Seaman,  147  N.  Y.  69,  41  N.  E.  401. 

«T  Matter  of  Pell,  171  N.  Y.  48,  89  Am.  St.  Eep.  791,  57  L.  B.  A.  540, 
63  N.  E.  789. 


60  INHERITANCE  TAXATION. 

doubt.  The  privilege  of  succession  is  not  fully  exer- 
cised until  the  remainderman  comes  into  the  possession 
or  enjoyment  of  the  property,  and  until  the  happen- 
ing of  that  event  it  is  not  unreasonable  to  hold  that 
the  power  of  the  legislature  to  impose  a  tax  exists.28 

This  view  finds  support  in  a  recent  Massachusetts 
decision.29  In  that  state  three  changes  were  made  in 
the  statute  imposing  an  inheritance  tax  on  estates  to 
take  effect  after  the  expiration  of  an  estate  for  life 
or  a  term  of  years.  The  time  for  the  payment  of  the 
tax  was  extended  some  years ;  the  liability  for  its  pay- 
ment was  put  directly  on  the  beneficiary  of  the  dece- 
dent instead  of  upon  the  administrator;  and  the  tax 
was  to  be  assessed  upon  the  value  of  the  property  at 
the  time  when  the  right  of  possession  accrued  to  the 
beneficiary,  and  was  to  be  paid  by  him  upon  coming 
into  possession.  The  statute  applied  to  the  estates  of 
persons  deceased  before  its  enactment,  and  its  consti- 
tutionality was  for  that  reason  questioned,  especially 
in  that  the  time  for  determining  the  value  of  the 
property  for  the  purpose  of  fixing  the  remaindermen's 
tax  was  postponed,  so  that  in  the  particular  case  be- 
fore the  court  such  value  had  increased  and  the  tax 
was  made  more  burdensome. 

This  change,  said  the  court,  "aimed  to  do  more 
exact  justice  both  to  the  commonwealth  and  to  tax- 
able beneficiaries  in  remainder,  by  taxing  them  upon 
the  real  value  of  what  they  should  receive  rather  than 
upon  a  value  fixed  by  estimation  which  must  be  deter- 
mined sometimes  many  years  before  their  receipt  of 
the  property,  and  which  could  but  rarely  accord  ex- 
actly with  the  real  value  of  what  afterward  should 

28  As  supporting  this  view,  see  Succession  of  Stauffer,  119  La.  66,  43 
South.  928;  Gelsthorpe  v.  Furnell,  20  Mont.  299,  39  L.  R.  A.  170,  51 
Pac.  267;  Cahen  v.  Brewster,  203  U.  S.  543,  8  Ann.  Gas.  215,  51  L.  Ed. 
813,  27  Sup.  Ct.  Rep.  174. 

2»  Attornej  General  v.  Stone,  209  Mass.  186,  95  N.  E.  395. 


INTERPRETATION  OP  STATUTES.  61 

come  to  them,  which  might  sometimes  so  far  exceed 
that  real  value  as  to  subject  them  to  an  onerous  and 
disproportionate  burden,  and  in  other  cases  might  be 
materially  less  than  that  value,  and  so  afford  them 
a  partial  exemption,  all  of  which  might  result  in  such 
an  unjust  discrimination  as  was  condemned  in  Suc- 
cession of  Pritchard.30  The  statute  substituted  a  valu- 
ation by  the  same  uniform  standard,  the  real  value 
when  the  property  came  to  the  beneficiary,  for  an 
uncertain  valuation  to  be  made  in  advance  of  that 

time Such  an  alteration,  designed  and  adapted 

to  bring  about  uniformity  of  taxation  by  assessing  the 
inheritance  of  each  individual  according  to  its  value 
when  he  receives  it,  is  not  of  itself  beyond  the  power 
of  the  legislature  in  such  a  case  as  is  now  presented." 
"This  is  an  excise  tax,"  continues  the  court,  "im- 
posed not  only  upon  the  right  of  the  owner  of  prop- 
erty to  transmit  it  after  his  death,  but  also  upon  the 
privilege  of  his  beneficiaries  to  succeed  to  the  prop- 
erty thus  dealt  with.  The  privilege  is  not  fully  exer- 
cised until  the  property  shall  have  come  into  the 
possession  of  the  beneficiary.  Until  the  full  exercise 
of  such  privilege  and  while  as  yet  no  tax  has  been 
assessed  and  paid  thereon,  we  see  no  reason  why,  by  a 
general  rule  applicable  to  all  such  cases,  any  pending 
liability  to  taxation  may  not  be  regulated  so  as  to 
subject  it  to  a  just  and  uniform  method  of  assessment, 
even  though  some  change  may  thereby  be  made  from 
the  method  previously  adopted.  This  involves  no  in- 
fringement or  impairment  of  vested  rights;  it  causes 
no  unjust  discrimination  by  substituting  a  just  and 
equal  assessment  based  upon  actual  values  for  the 
necessarily  uncertain  and  unequal  determination  by 
the  opinions  of  appraisers,  however  expert,  of  future 
and  contingent  values.  It  does  not  deny  to  the  re- 

»o  Succession  of  Pritchard,  118  La.  883,  43  South.  537. 


62  INHERITANCE  TAXATION. 

spondent  the  equal  protection  of  the  law;  it  applies 
the  same  rule  to  him  as  to  all  other  persons  in  the 
same  situation,  and  such  cases  as  James  v.  American 
Surety  Company S1  have  no  bearing.  We  cannot  re- 
gard the  statute  as  unconstitutional  by  reason  of  this 
change.  Nor  is  it  unconstitutional  because  it  applied 
only  to  cases  in  which  a  succession  tax  remained 
unpaid. ' ' s2 

§  40.  Law  Governing  Powers  of  Appointment. — 
The  application  of  inheritance  taxation  to  powers  of 
appointment  is  attended  with  no  little  difficulty  in  the 
matter  of  determining  what  law,  in  point  of  time, 
shall  control.  The  theory  has  prevailed  in  a  number 
of  jurisdictions  that  the  source  of  the  title  is  the  in- 
strument creating  the  power,  into  which  the  names  of 
the  appointees  must  be  read,  and  their  right  of  suc- 
cession vests,  not  at  the  execution  of  the  power,  but 
at  the  time  when  the  instrument  which  created  it 
went  into  effect.  Hence  if  a  will  creating  a  power  of 
appointment  became  effective  through  the  death  of 
the  testator  prior  to  the  enactment  of  a  statute  impos- 
ing inheritance  taxes,  bequests  made  in  the  exercise 
of  the  power  after  the  enactment  of  such  statute  are 
not  taxable.  The  donor  of  the  power  of  appointment, 
rather  than  the  donee,  is  regarded  as  the  decedent 
whose  estate  is  subject  to  taxation.33 

The  legislature  of  New  York,  evidently  not  satisfied 
with  this  interpretation,  has  amended  the  statute  of 
that  state  so  as  to  make  it  clear  that  the  act  consti- 
tuting the  transfer  or  succession  is,  for  purposes  of 

«i  James  v.  American  Surety  Co.,  133  Ky.  313,  117  S.  W.  406. 

82  Attorney  General  v.  Stone,  209  Mass.  186,  95  N.  E.  395. 

«8  Emmons  v.  Shaw,  171  Mass.  410,  50  N.  E.  1033 ;  Estate  of  Stewart, 
131  N.  Y.  274,  14  L.  E.  A.  836,  30  N.  E.  184;  Will  of  Harbeck,  161 
N.  Y.  211,  55  N.  E.  850;  Commonwealth  v.  Duffield,  12  Pa.  277;  Com- 
monwealth v.  Williams,  13  Pa.  29. 


INTERPRETATION  OF  STATUTES.  63 

inheritance  taxation,  the  execution  of  the  power  of 
appointment.  This  seems  the  more  reasonable  view, 
for  whatever  may  be  the  technical  source  of  the  title 
of  the  donee  under  the  power,  it  is  undeniable  that  in 
reality  and  in  substance  it  is  the  execution  of  the 
power  that  gives  him  the  property.  Under  this  theory 
of  the  law  it  is  immaterial  that  there  was  no  statute 
imposing  an  inheritance  tax  in  force  at  the  time  when 
the  original  disposition  of  the  property  was  made  and 
the  power  created;  it  is  the  law  in  existence  at  the 
time  when  the  power  is  executed  that  determines  the 
liability  of  the  donee  under  the  power  to  pay  a  tax. 

Therefore,  if  a  testator  devises  property  in  trust  for 
a  life  then  in  being,  and  provides  that  at  the  termina- 
tion of  that  life  it  shall  vest  in  the  surviving  children 
of  that  person  and  such  of  the  issue  of  his  deceased 
children  as  he  may  designate  and  appoint  by  his  will, 
the  property  so  passing  by  such  appointment  is  sub- 
ject to  the  inheritance  tax,  although  at  the  time  of 
the  making  of  the  original  will  there  was  no  such  tax 
as  against  the  descendants  of  the  testator.34  And  an 
inheritance  tax  is  properly  assessed  upon  the  exer- 
cise, by  last  will  and  testament,  of  a  power  of  appoint- 
ment executed  before  the  passage  of  any  statute  im- 
posing a  tax  on  the  right  of  succession  to  the  property 
of  decedents." 

In  Massachusetts,  and  other  states  also,  the  statutes 
now  provide  that,  in  case  of  a  power  of  appointment, 
the  inheritance  taxation  shall  be  in  the  same  manner 
as  though  the  property  belonged  absolutely  to  the 
donee  of  the  power,  and  had  by  him  been  bequeathed 
or  devised  by  will.36  Formerly,  however,  the  rule  was 

34  Matter  of  Dows,  167  N.  Y.  227,  88  Am.  St.  Hep.  508,  52  L.  B.  A. 
433,  60  N.  E.  439. 

SB  Estate  of  Delano,  176  N.  Y.  486,  64  L.  B.  A.  279,  68  N.  E.  871. 

as  Minot  v.  Stevens,  207  Mass.  588,  33  L.  B.  A.,  N.  S.,  236,  93  N.  E. 
873. 


64  INHERITANCE  TAXATION. 

different  in  Massachusetts,  the  donor  of  the  power, 
rather  than  the  donee,  being  regarded  as  the  decedent 
whose  estate  was  taxable.87  And  this  former  rule  ap- 
pears to  have  been  approved  in  Kentucky.88 

This  question  will  be  further  considered  in  the 
chapter  on  "Powers  of  Appointment  and  Their  Exer- 
cise."" 

§  41.  Amendatory  Act. — Since  inheritance  taxa- 
tion is  governed  by  the  statute  in  force  at  the  time 
of  the  death  of  the  decedent,  amendatory  acts  adopted 
after  the  death  have  no  operation  on  pending  admin- 
istration, and  no  retrospective  effect,  unless  the  legis- 
lature clearly  so  intended,  but  the  rights  of  the  parties 
are  determined  by  the  statute  as  it  stood  at  the  date 
of  the  death.40  Hence  where  gifts  to  charitable  insti- 
tutions are  subject  to  taxation  at  the  time  of  the 
testator's  death,  they  are  not  relieved  from  the  burden 
by  a  subsequent  amendment  to  the  statute  exempting 

87  Emmons  v.  Shaw,  171  Mass.  410,  50  N.  E.  1033. 

as  Winn  v.  Schenck,  33  Ky.  Law  Rep.  615,  110  S.  W.  827,  where  the 
Kentucky  court  said:  "In  the  case  of  Emmons  v.  Shaw,  171  Mass.  410, 
50  N.  E.  1033,  the  supreme  court  of  Massachusetts  passed  upon  a  ques- 
tion somewhat  similar.  There  one  Thomas  B.  Wales  had  devised  certain 
property  to  his  son,  George  W.  Wales,  for  life,  subject  to  his  disposition 
by  will,  but,  in  the  event  that  he  died  intestate,  with  further  limitations 
as  to  the  fee.  The  son  disposed  of  the  property  by  will  under  the  power, 
and,  an  inheritance  law  having  been  adopted  after  the  death  of  his 
father  but  before  his  death,  an  effort  was  made  to  collect  the  tax  from 
his  property.  The  court  declined  to  enforce  it,  and,  in  so  doing,  said: 
'What  is  done  under  a  power  of  appointment  is  to  be  referred  to  the 
instrument  by  which  the  power  ia  created,  and  operates  as  a  disposition 
of  the  estate  of  the  donor.'" 

39  See  post,  sees.  78-86. 

«o  State  v.  Switzler,  143  Mo.  287,  65  Am.  St.  Rep.  653,  40  L.  R.  A. 
280,  45  S.  W.  245;  Carter  v.  Whitcomb,  74  N.  H.  482,  17  L.  R.  A.,  N.  S., 
733,  69  Atl.  77&;  Estate  of  Graves,  34  Misc.  Rep.  677,  70  N.  Y.  Supp. 
727,  order  reversed  in  66  App.  Diy.  267,  72  N.  Y.  Supp.  815;  Estate  of 
Brooks,  6  Dem.  Sur.  (N.  Y.)  165. 


INTERPRETATION  OF  STATUTES.  65 

such  gifts,  notwithstanding  the  act  takes  effect  before 
the  will  is  probated.*1 

§  42.  Curative  Act. — Where  an  inheritance  tax  law 
is  ineffectual  at  the  time  of  the  death  of  a  testator, 
because  in  certain  particulars  unconstitutional,  the 
legislature  may,  before  the  distribution  of  the  estate, 
cure  the  defects  in  the  original  statute  by  an  amend- 
atory act,  and  subject  to  taxation  the  property  still 
under  the  control  of  the  probate  court.42 

§  43.  Repeal  and  Re-enactment  of  Statute. — "Re- 
peals of  inheritance  tax  laws  by  implication,  like 
repeals  of  other  revenue  acts,  are  not  favored."  And 
where  there  is  an  express  repeal  of  a  statute,  and  at 

«i  Provident  Hospital  &  Training  School  Assn.  v.  People,  198  HI.  495, 
64  N.  E.  1031;  Connell  v.  Crosby,  210  111.  380,  71  N.  E.  350;  Sherrell  v. 
Christ  Church,  121  N.  Y.  701,  25  N.  E.  50. 

«  Montgomery  v.  Gilbertson,  134  Iowa,  291,  10  L.  R.  A.,  N.  S.,  986, 
111  N.  W.  964. 

«  Zickler  v.  Union  Bank  &  Trust  Co.,  104  Tenn.  277,  57  S.  W.  341. 

The  effect  of  the  repeal  of  certain  provisions  of  the  New  York  statutes 
will  be  found  considered  in  Matter  of  Prime,  136  N.  Y.  347,  18  L.  B.  A. 
713,  32  N.  E.  1091,  affirming  64  Hun,  50,  18  N.  Y.  Supp.  603;  Estate  of 
Jones,  54  Misc.  Rep.  202,  105  N.  Y.  Supp.  932;  Matter  of  Arnett,  49 
Hun,  599,  2  N.  Y.  Supp.  428;  Estate  of  Moore,  90  Hun,  162,  35  N.  Y. 
Supp.  782;  and  the  repeal  of  the  Virginia  statute  in  Eyre  v.  Jacob,  14 
Gratt.  (Va.)  422,  73  Am.  Dec.  367;  Fox's  Admrs.  v.  Commonwealth,  16 
Gratt.  (Va.)  1.  The  Ohio  statute  repealing  the  inheritance  tax  and  ex- 
cepting from  the  repeal  estates  wherein  the  inventory  had  been  filed  at 
the  date  of  the  passage  of  the  act,  was  not  affected  by  section  79  of  the 
Revised  Statutes  of  1906,  providing  that  a  repeal  shall  not  affect  pend- 
ing actions  or  proceedings,  and  the  right  to  collect  such  tax  was  termi- 
nated when  the  act  took  effect :  Friend  v.  Levy,  76  Ohio  St.  26,  80  N.  E. 
1036.  Where  no  succession  tax  provided  for  by  the  act  of  Congress,  June 
13,  1898,  was  due  or  a  lien  on  property  when  the  act  was  repealed,  the 
tax  to  which  the  estate  would  otherwise  have  been  subject  was  not  "im- 
posed" at  the  date  of  the  repeal  within  the  saving  clause  of  the  repealing 
act,  providing  that  taxes  previously  imposed  should  not  be  affected  by 
the  repeal:  Tilghman  v.  Eidman,  131  Fed.  651.  Section  20  of  the  col- 
lateral inheritance  tax  law  of  California,  giving  the  county  treasurer  a 
commission  on  all  sums  collected  thereunder  in  addition  to  his  salary, 
6 


66  INHERITANCE  TAXATION. 

the  same  time  a  re-enactment  of  a  portion  of  its  pro- 
visions, the  re-enactment  neutralizes  the  repeal,  in  so 
far  as  the  old  law  is  continued  in  force,  and  the  part 
of  the  old  law  re-enacted  operates  without  interrup- 
tion.44 The  right  of  the  state  to  a  tax  becomes  vested 
immediately  on  the  death  of  the  decedent,  and  there- 
after it  is  not,  at  least  unless  such  is  the  clearly  ex- 
pressed intent  of  the  legislature,  devested  or  affected 
by  the  repeal  of  the  statute ; 4S  and  the  estate  cannot 
be  distributed  to  the  heirs  without  the  tax  being 
paid.48 

§  44.  Repeal  of  United  States  Statute.— The  in- 
heritance tax  imposed  by  Congress  in  1898,  although 
not  "due  and  payable"  under  section  30  thereof,  as 
amended  in  1901,  until  one  year  after  the  death  of 
the  testator,  must  be  deemed  to  have  become  an  obli- 
gation immediately  upon  the  passing  by  death  of  a 
vested  right  to  the  present  possession  or  enjoyment  of 
a  legacy  or  distributive  share,  so  as  to  be  within  the 
saving  clause  of  the  repealing  act  of  1902,  preserving 
all  taxes  "imposed"  prior  to  the  taking  effect  of  that 
act,  although  the  testator's  death  was  less  than  one 
year  prior  to  such  date,  in  view  of  the  statute  of 
1901,  providing  that  the  repeal  of  any  statute  shall 
not  have  the  effect  to  release  or  extinguish  any  pen- 
though  not  entirely  repealed,  has  been  so  modified  by  the  county  govern- 
ment acts  of  1893  and  1897  that  the  commissions  cannot  be  received  by 
him  individually  to  his  own  use,  but  must  be  paid  into  the  county  treas- 
ury: San  Diego  County  v.  Schwartz,  145  Cal.  49,  78  Pac.  231. 

44  Estate  of  Martin,  153  Cal.  225,  94  Pac.  1053. 

«6  Trippett  v.  State,  149  Cal.  521,  8  L.  R.  A.,  N.  S.,  1210,  86  Pac. 
1084;  Estate  of  Martin,  153  Cal.  225,  94  Pac.  1053;  Arnaud's  Heirs  v. 
His  Executor,  3  La.  336;  Succession  of  Pritchard,  118  La.  883,  43  South. 
537. 

46  Estate  of  Lander,  6  Cal.  App.  744,  93  Pac.  202. 


INTERPRETATION  OP  STATUTES.  67 

alty,  forfeiture,  or  liability  incurred  thereunder,  unless 
the  repealing  act  shall  expressly  so  provide.47 

<T  Hertz  v.  Woodman,  218  U.  S.  205,  54  L.  Ed.  1001,  30  Sup.  Ct.  Eep. 
621.  Other  federal  cases  bearing  on  this  question  are  Eidman  v.  Pilgh- 
man,  203  U.  S.  580,  51  L.  Ed.  326,  27  Sup.  Ct.  Rep.  779,  affirming  136 
Fed.  141,  69  C.  C.  A.  139;  McCoach  v.  Philadelphia  Trust  etc.  Co.,  205 
U.  S.  539,  27  Sup.  Ct.  Rep.  793,  51  L.  Ed.  921,  affirming  142  Fed.  120, 
73  C.  C.  A.  610;  United  States  v.  Marion  Trust  Co.,  205  U.  S.  539,  51 
L.  Ed.  1191,  27  Sup.  Ct.  Rep.  794,  affirming  143  Fed.  301,  74  C.  C.  A. 
439;  McCoach  v.  Bamberger,  161  Fed.  90,  88  C.  C.  A.  254;  Title 
Guaranty  &  Trust  Co.  v.  Ward,  184  Fed.  447,  affirming  164  Fed.  459. 


68  INHERITANCE  TAXATION. 

CHAJPTER  IV. 
PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX. 

§  50.  Property  Liable  to  Tax,  in  General. 

§  51.  Transfers  Subject  to  Tax,  in  General. 

§  52.  Increase  or  Decrease  of  Estate  After  Death. 

§  53.  Eeal  or  Personal  Property. 

§  54.  Property  Affected  by  Equitable  'Conversion. 

§  55.  Equitable  Conversion — Pennsylvania  Doctrine. 

§  56.  Estate  of  Surviving  Wife — Dower. 

§  57.  Estate  of  Surviving  Wife — Community  Property. 

§  58.  Estate  of  Surviving  Husband — Curtesy. 

§  59.  Articles  Exempt  to  Widow  and  Children. 

§  60.  Homestead  and  Family  Allowance. 

§  61.  Bequests  for  Funeral  or  Burial  Expenses. 

§  62.  Policy  of  Life  Insurance. 

§  63.  Deposits  in  Bank. 

§  64.  Corporate  Stock  and  Bonds. 

§  65.  Shares  in  Joint  Stock  Association. 

§  66.  United  States  Bonds  and  Securities. 

§  67.  Legacy  to  the  United  States. 

§  68.  Membership  in  Stock  Exchange. 

§  69.  The  Goodwill  of  Business. 

§  70.  Interest  in  Partnership  Property. 

§  71.  Bequest  in  Discharge  of  Debt  or  Obligation. 

§  72.  Advancements. 

§  50.  Property  Liable  to  Tax,  in  General. — Save 
for  the  exemptions,  which  will  be  considered  in  a  sub- 
sequent chapter,1  inheritance  tax  statutes  are  usually 
comprehensive  in  their  scope  and  made  to  include  all 
property  within  the  jurisdiction  of  the  taxing  power.2 

*  See  the  chapter  on  "Exemptions  from  Taxation,"  post,  sees.  145- 
158. 

*  Morrow  v.  Durant,  140  Iowa,  437,  17  Ann.  Cas.  850,  23  L.  R.  A.,  N. 
S.,  474,  118  N.  W.  781;  Hooper  v.  Shaw,  176  Mass.  190,  57  N.  E.  361; 
Howe  v.  Howe,  179  Mass.  546,  55  L.  R.  A.  626,  61  N.  E.  225;  Hinds  v. 
Wilcox,  22  Mont.  4,  55  Pac.  355;  Neilson  v.  Russell,  76  N.  J.  L.  27,  69 
Atl.  476;   Estate  of  Eaton,  55  Misc.  Rep.  472,  106  N.  Y.  Supp.  682; 
Matter  of  Edson,  38  App.  Div.  19,  56  N.  Y.  Supp.  409;   Plummer  v. 
Coler,  178  U.  S.  115,  44  L.  Ed.  998,  20  Sup.  Ct.  Rep.  829. 

"The  statute  refers  to  all  property  transferred  by  will,  not  the  kind, 
nor  what  it  is  for;  but  the  passing  of  the  title  by  the  will":  Estate  of 
Eaton,  55  Misc.  Rep.  472,  106  N.  Y.  Supp.  682. 


PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX.       69 

Thus  the  collateral  inheritance  tax  of  Pennsylvania 
applies  to  "all  estates,  real,  personal  and  mixed,  of 
every  kind  whatsoever."8  And  the  Massachusetts 
statute  includes  "all  property  within  the  jurisdiction 
of  the  commonwealth,  corporeal  and  incorporeal,  and 
any  interest  therein,  whether  belonging  to  the  inhab- 
itants of  the  commonwealth  or  not."  This  language 
indicates  an  intention  on  the  part  of  the  legislature 
to  tax  all  property  that  it  has  the  power  to  tax;  the 
statute  is  as  broad  as  the  jurisdiction  of  the  state.4 
The  California  statute  declares  "a  tax  shall  be  and  is 
hereby  imposed  upon  the  transfer  of  any  property, 
real,  personal  or  mixed,  or  of  any  interest  therein 
or  income  therefrom,  in  trust  or  otherwise,  to  per- 
sons, institutions,  or  corporations,  not  hereinafter  ex- 
empted. " 6  Of  the  Maryland  statute  it  has  been  said 
that ' '  ample  provision  is  made  for  every  possible  con- 
tingency that  may  arise,  whether  the  decedent  is  a 
resident  of  this  state  or  not,  provided  the  property  is 
located  here,  if  he  is  a  nonresident,  or  is  actually  or 
constructively  here  if  he  is  a  resident.  No  estate  can 
escape  administration  if  the  law  is  enforced,  and  when 
the  property  passes  into  the  hands  of  the  executor  his 
obligation  to  pay  the  tax  is  fixed,  and  his  bond  at 
once  becomes  liable  therefor."6* 

Under  such  statutes  the  inheritance  tax  is  measured 
by  the  property  within  the  power  of  the  state  to  tax, 
and  not  by  the  property  which  the  state  policy  has 
selected  for  purposes  of  general  taxation."  Property 
not  taxable  as  such  may  constitutionally  be  considered 
in  fixing  the  amount  of  an  inheritance  tax;  the  fact 

»  Estate  of  Lea,  194  Pa.  524,  45  Atl.  337. 

4  Kinney  T.  Stevens,  207  Mass.  368,  Ann.  Gas.  1912A,  902,  35  L.  E. 
A.,  N.  S.,  784,  93  N.  E.  586.  See,  too,  Greves  T.  Shaw,  173  Mass.  205, 
53  N.  E.  272. 

»  Cal.  Stats.  1911,  p.  713. 

•»  Fisher  v.  State,  106  Md.  104,  66  Atl.  661. 

•  Estate  of  Stanton,  142  Mich.  491,  105  N.  W.  1122. 


70  INHERITANCE  TAXATION. 

that  property  is  exempt  from  general  taxation  does 
not  prevent  the  imposition  of  an  inheritance  tax  on 
the  transfer  thereof,  for  such  tax  is  on  the  succession, 
not  on  the  property.1 

"The  continuous  tendency  of  the  courts,"  to  quote 
from  Justice  Hatch,  "has  been  to  embrace  within  the 
transfer  tax  act,  directly  or  indirectly,  all  property  of 
every  species  found  herein  on  the  death  of  the  dece- 
dent. "*  Referring  to  the  New  York  statute,  Justice 
Glass,  in  an  opinion  delivered  in  f901,  makes  this 
observation:  "The  present  laws  relating  to  taxable 
transfers  are  a  compilation  and  revision  of  fifteen 
years  of  legislation  upon  the  subject,  beginning  with 
the  collateral  inheritance  tax  act  of  1885.  Its  develop- 
ment has  been,  to  a  great  extent,  in  the  form  of  amend- 
ments seeking  to  enlarge  the  field  of  taxation,  and  to 
break  down  the  barriers  which  separated  the  exempt 
from  the  nonexempt.  Judicial  decisions  tending  to 
limit  the  scope  of  the  law  have  been  closely  followed 
by  new  legislation  abolishing  the  exemptions  declared 
by  the  courts  to  exist.  The  constant  effort  seems  to 
have  been  to  bring  more  persons  and  more  property 
within  the  operation  of  the  law. ' ' B 

One  cannot  contemplate  the  course  of  events  in  New 
York  without  being  impressed  with  the  truth  of  these 
observations.  And  while  that  state  has  been  more 
progressive  than  some  others  in  extending  the  whole- 
some principle  of  inheritance  taxation,  yet  the  states 
generally  show  a  commendable  tendency  in  that  direc- 
tion. New  York,  though  perhaps  more  conspicuous, 
does  not  stand  alone  in  this  respect. 

T  Kingsbury  v.  Chapin,  196  Mass.  533,  13  Ann.  Gas.  738,  82  N.  E.  700 ; 
Estate  of  Knoedler,  140  N.  Y.  377,  35  N.  E.  601;  Orr  v.  Gilman,  183  U. 
8.  278,  46  L.  Ed.  196,  22  Sup.  Ct.  Eep.  213. 

•  Estate  of  Daly,  100  App.  Div.  373,  91  N.  Y.  Supp.  858. 

»  Estate  of  Grouse,  34  Misc.  Eep.  670,  70  N.  Y.  Supp.  731. 


PROPERTY  AND  SUCCESSIONS  SUBJECT   TO  TAX.  71 

§  51.  Transfers  Subject  to  Tax,  in  General. — In- 
heritance tax  statutes  are  also  comprehensive  in  em- 
bracing all  transfers  occasioned  by  or  referred  to  the 
death  of  the  transferrer.  Not  only  are  those  transfers 
by  will  or  by  the  intestate  laws  included,  but  also  those 
made  in  contemplation  of  the  death  of  the  donor  or 
grantor,  or  intended  to  take  effect  in  enjoyment  after 
his  death.  And  transfers  in  contemplation  of  death 
are  not  restricted  to  gifts  technically  causa  mortis; 
nor  are  transfers  by  will  confined  to  such  testamentary 
gifts  as  are  merely  gratuitous,  but  embrace  all  gifts 
by  will,  whatever  the  motive  may  be,  whether  to  pay 
a  debt,  discharge  some  obligation,  legal  or  moral,  or  to 
benefit  a  relative  or  person  for  whom  the  testator 
entertained  an  affection.10 

If  a  will  gives  the  testator's  estate  to  his  widow,  on 
condition  that  she  pay  certain  legacies  to  his  collateral 

10  Matter  of  Gould,  156  N.  Y.  423,  51  N.  E.  287 ;  Estate  of  Stebbins, 
52  Misc.  Rep.  438,  103  N.  Y.  Supp.  563;  Estate  of  Price,  62  Misc.  Rep. 
149,  116  N.  Y.  Supp.  283. 

Where  a  man  devised  property  to  his  mother,  and  she  predeceased  him, 
leaving  as  heirs  a  brother  and  sister  of  the  testator,  it  was  decided  that 
the  devised  property  passed  directly  from  the  testator  to  his  brother  and 
sister,  and  hence  was  subject  to  the  collateral  inheritance  tax:  Estate  of 
Hulett,  121  Iowa,  423,  96  N.  W.  952. 

A  trustee  who,  at  the  time  of  the  war  revenue  act  of  1898,  held  person- 
alty under  a  testamentary  trust,  the  property  to  be  distributed  among 
the  survivors  at  a  future  date  of  a  class  of  legatees  designated  by  the 
testator,  is  not  a  "person  possessed"  of  the  property,  so  that  it  will  be 
taxable  when  it  passes  from  him  to  the  distributees:  McLain  v.  Penn- 
sylvania Co.,  108  Fed.  618,  47  C.  C.  A.  529. 

Where  personal  property  is  held  in  joint  tenancy,  the  share  of  one 
tenant  which  passes  to  the  others  on  his  death  is  subject  to  the  in- 
heritance tax:  United  States  v.  Robertson,  183  Fed.  711. 

A  devise  of  property  by  a  wife  to  her  husband  has  been  held  subject 
to  the  succession  tax,  notwithstanding  it  was  bought  and  paid  for  by  him, 
and  deeded  to  her,  on  the  understanding  that  she  should  will  it  to  him: 
Ransom  v.  United  States,  Fed.  Cas.  No.  11,574. 

A  statute  that  imposes  a  tax  on  "property  of  any  decedent  which  passes 
to  any  person  other  than"  specified  relatives,  embraces  property  willed  to 
a  corporation:  Miller  v.  Commonwealth,  27  Gratt.  (Va.)  110. 


72  INHERITANCE  TAXATION. 

relatives,  the  legacies  are  subject  to  the  collateral  in- 
heritance tax,  as  directly  bestowed  by  the  will.11  And 
where  property  is  devised  absolutely  to  the  executor, 
the  fact  that  extrinsic  evidence  shows  that  it  is  im- 
pressed with  a  trust  in  favor  of  a  brother  of  the  tes- 
tator does  not  relieve  it  from  liability  for  the  transfer 
tax.12  But  where  a  man  thirty  years  before  his  death 
agreed,  for  a  valuable  consideration,  with  the  mother 
of  his  child  that  his  property  remaining  at  his  death 
shall  go  to  the  child,  and  nine  years  before  his  death 
a  judgment  for  specific  performance  of  the  contract 
is  awarded  the  child,  the  transfer  is  not  by  will  nor 
by  the  intestate  laws  nor  in  contemplation  of  death, 
so  as  to  be  subject  to  the  transfer  tax.18 

§  52.  Increase  or  Decrease  of  Estate  After  Death. 
The  right  of  the  state  to  an  inheritance  tax  accrues 
at  the  moment  of  death,  and  hence  is  ordinarily  meas- 
ured as  to  any  beneficiary  by  the  value  at  that  time 
of  such  property  as  passes  to  him.  Subsequent  appre- 
ciation or  depreciation  is  immaterial.14  Unless  the 
statute  otherwise  provides,  the  tax  does  not  fasten  on 
the  increase  or  income  of  the  estate,  accruing  after  the 
death  of  the  decedent  and  during  administration.16 

Some  of  the  statutes,  in  defining  what  property  shall 
be  subject  to  the  tax,  use  the  terms,  property  of  which 

11  Appeal  of  Lauman,  131  Pa.  346,  18  Atl.  900. 

12  Matter  of  Edson,  38  App.  Div.  19,  56  N.  Y.  Supp.  409,  affirmed,  159 
N.  Y.  568,  54  N.  E.  1092. 

18  Estate  of  Demers,  41  Misc.  Eep.  470,  84  N.  Y.  Supp.  1109. 

i*  Estate  of  Hite,  159  Cal.  392,  113  Pac.  1072;  Estate  of  Van  Pelt, 
63  Misc.  Rep.  616,  118  N.  Y.  Supp.  655;  Estate  of  Vivanti,  138  App.  Div. 
281,  122  N.  Y.  Supp.  954.  The  value  of  the  estate  is  not  to  be  dimin- 
ished, for  purposes  of  the  tax,  by  the  expense  of  litigation  among  the 
distributees  (Estate  of  Sanford,  66  Misc.  Rep.  396,  123  N.  Y.  Supp. 
284),  nor  by  losses  due  to  misappropriation  by  the  executor:  Estate  of 
Hite,  159  Cal.  392,  113  Pac.  1072. 

IB  Estate  of  Williamson,  153  Pa.  508,  26  Atl.  246;  Estate  of  Miller,  5 
Pa.  Co.  Ct.  522. 


PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX.      73 

a  person  dies  "seised  or  possessed,"  and  under  such 
statutes  it  is  held  that  the  increase  or  interest  that 
accrues  pending  administration  is  not  subject  to  the 
inheritance  tax.18  Other  statutes,  in  defining  the  prop- 
erty subject  to  taxation,  do  not  use  the  expression 
"seised  or  possessed,"  but  under  them  it  has  never- 
theless been  held  that  the  income  accruing  after  death 
is  not  subject  to  the  tax.  In  so  holding,  the  supreme 
court  of  Massachusetts  said:  "A  decision  could  be 
made  either  way  without  contradicting  the  express 
words  of  the  act,  or,  possibly,  even  any  very  clear 
implication.  But  such  indications  as  there  are  seem 
to  us  to  converge  toward  the  conclusion  that  the  valu- 
ation is  to  be  as  of  the  day  of  the  death.  The  lan- 
guage of  the  first  section,  'All  property  ....  which 
shall  pass  by  will  ....  or  by  deed,  grant,  sale  or 
gift,  made  or  intended  to  take  effect  in  possession  or 
enjoyment  after  the  death  of  the  grantor,  ....  shall 
be  subject  to  a  tax  of  five  per  centum  of  its  value,' 
naturally  would  be  construed  to  mean  value  at  the 
time  when  the  property  passes.  Such  has  been  the 
construction  adopted  elsewhere,  although  under  acts 
no  doubt  more  explicit  than  ours."  So  a  fortiori  upon 
the  view  of  the  nature  of  the  tax  expressed  in  United 
States  v.  Perkins.18  The  time  when  the  property 
passes  under  a  deed  is  not  later  than  the  death  of  the 
grantor.  The  same  is  true  in  the  case  of  a  will.  It  is 
true  that  in  the  latter  instance  the  interest  of  a  legatee 
is  subject  to  an  account,  but  still  it  is  an  interest  in 
the  fund  as  it  is,  analogous  to  that  of  a  cestui  que 

"  Matter  of  Vasear,  127  N.  Y.  1,  27  N.  E.  394,  reversing  58  Hun,  378, 
12  N.  Y.  Supp.  203. 

IT  Attorney  General  Y.  Sefton,  11  H.  L.  Can.  257,  269,  271,  275,  276, 
11  Eng.  Reprint,  1331-1333;  Estate  of  Westurn,  152  N.  Y.  93,  102,  46 
N.  E.  315. 

i«  United  States  v.  Perkins,  163  U.  S.  625,  41  L.  Ed.  287,  16  Sup.  Ct. 
Eep.  1073. 


74  INHERITANCE  TAXATION. 

trust,  and  vests  at  the  death  of  the  testator."  On  this 
ground  it  is  that  other  courts  have  held  that  income 
accruing  after  the  testator's  death  is  not  liable  to  the 
tax.20  As  stated  by  the  counsel  for  the  legatees,  it  is 
not  a  part  of  the  property  which  passes  by  the  will."  21 
Some  statutes,  the  Montana,  for  example,  expressly 
provide  that  the  inheritance  tax  ''shall  be  levied  and 
collected  upon  the  increase  of  all  property  arising 
between  the  date  of  death  and  the  date  of  the  decree 
of  distribution";  and  under  such  a  provision  the  words 
"increase  of  all  property"  includes  multiplication  in 
kind  as  well  as  augmentation  in  value.22  Under  a 
statute  of  this  kind,  where  there  has  been  delay  in 
payment  and  there  is  uncertainty  as  to  the  value  of 
the  property  and  hence  as  to  the  amount  of  the  tax, 
due  to  appreciation  or  the  character  of  the  interest 
passing  to  the  beneficiaries,  such  as  future  contingent 
interests  or  incomes  from  them,  the  court  may  pro- 
ceed to  ascertain  the  increase  in  the  value  which 
accrued  between  the  date  of  the  death  of  the  testator 
and  the  date  of  the  decree  of  distribution.23 

§  53.  Real  or  Personal  Property. — Under  the  pro- 
visions of  some  statutes  it  often  becomes  necessary,  in 
order  to  determine  whether  property  is  subject  to  the 
inheritance  tax,  to  ascertain  whether  it  is  personal 
property  or  real  estate,  distinctions  being  made  be- 
tween these  two  classes  of  property  in  the  matter  of 
taxation.  Of  course  the  legislature  is  competent  to 
classify  various  kinds  of  property  for  purposes  of  in- 
heritance taxation,  restricting  the  tax,  for  instance,  to 
personal  property  alone;  and  the  courts  have  no  au- 

"  Chapin  Nat.  Bank  v.  Waite,  150  Mass.  234,  22  N.  E.  915. 

20  Estate  of  Williamson,  153  Pa.  508,  26  Atl.  246. 

21  Hooper  v.  Brafford,  178  Mass.  95,  59  N.  E.  678. 

22  Estate  of  Tuohy,  35  Mont.  431,  90  Pac.  170. 

23  State  v.  District  Court,  41  Mont.  357,  109  Pac.  438. 


PROPERTY  AND  SUCCESSIONS  SUBJECT   TO  TAX.  7.5 

thority,  when  the  legislature  has  omitted  real  estate, 
to  supply  the  omission.24 

In  New  York  a  minor's  share  of  the  proceeds  of  a 
partition  sale  of  land  has  been  been  held  taxable  un- 
der a  statute  exempting  property  passing  to  certain 
relatives,  unless  it  is  personal  property  of  the  value  of 
ten  thousand  dollars  or  more.25  A  leasehold  interest 
has  also  been  regarded  as  personal  property;26  but  a 
perpetual  lease,  reserving  rent,  is  real  property,  within 
the  meaning  of  the  transfer  tax  act.27  Land  contracts 
owned  by  a  vendor  at  the  time  of  his  death  have  been 
considered  personal  property,  for  purposes  of  inherit- 
ance taxation ; 28  so  has  the  interest  of  shareholder  in 
the  realty  of  a  joint  stock  association.29 

Where  a  testator  directs  his  executors,  as  soon  as 
practicable  after  his  death,  to  pay  off,  out  of  his  per- 
sonal property,  encumbrances  on  his  real  estate,  this 
has  been  said  not  to  relieve  the  personal  property,  to 
the  extent  of  the  amount  necessary  to  discharge  the 
encumbrances,  from  the  operation  of  the  transfer  tax 
law.  The  transfer  tax  should  be  imposed  upon  prop- 
erty in  the  form  in  which  it  stands  at  the  time  of  the 
owner's  death.30 

§  54.    Property  Affected  by  Equitable  Conversion. 

It  has  been  attempted,  with  varying  degrees  of  success, 
to  invoke  the  rule  of  equitable  conversion  so  that  real 

2*  Hinds  v.  Wilcox,  22  Mont.  4,  55  Pac.  355 ;  Estate  of  Morris,  138  N. 
C.  259,  50  S.  E.  682.  But  see  Drew  T.  Tifft,  79  Minn.  175,  79  Am.  St. 
Eep.  446,  47  L.  R.  A.  525,  81  N.  W.  839. 

as  Matter  of  Stiger,  7  Misc.  Eep.  268,  28  N.  Y.  Supp.  163. 

20  Estate  of  Althouse,  63  App.  Div.  252,  71  N.  Y.  Supp.  445,  affirmed, 
168  N.  Y.  670,  61  N.  E.  1127. 

21  Estate  of  Vivanti,  138  App.  Div.  281,  122  N.  Y.  Supp.  954. 
28  Estate  of  Stanton,  142  Mich.  491,  105  N.  W.  1122. 

2»  Estate  of  Jones,  172  N.  Y.  575,  60  L.  R.  A.  476,  65  N.  E.  570. 
»o  Estate  of  De  Graaf,  24  Misc.  Rep.  147,  53  N.  Y.  Supp.  591;  Estate 
of  Offerrnan,  25  App.  Div.  94,  48  N.  Y.  Supp.  993. 


76  INHERITANCE  TAXATION. 

estate  of  a  testator,  otherwise  not  subject  to  inherit- 
ance taxation,  might  be  considered  personal  property 
and  thereby  brought  within  the  operation  of  the  tax- 
ing statute.  In  at  least  two  New  York  decisions  it  has 
been  affirmed  that  where  a  testator  directs  a  sale  or 
conversion  of  his  real  estate  for  distribution,  it  be- 
comes taxable  as  personal  property.81  The  court  of 
appeals  of  that  state,  however,  has  generally  resisted 
the  application  of  the  doctrine  of  equitable  conversion 
in  this  connection,  declaring  that  "the  question  of 
taxation  is  one  of  fact,  and  cannot  turn  on  theories 
or  fiction,"  and  that  "it  was  never  intended  by  the 
law  to  tax  a  theory  having  no  real  existence  behind 
it."82 

In  the  leading  New  York83  case  it  was  sought  to 
apply  the  rule  of  equitable  conversion  to  real  estate 
situate  without  the  state  of  New  York,  which,  unless 
it  could  be  regarded  as  personalty,  could  not  be  sub- 
jected to  the  inheritance  tax.  But  the  court  refused 
to  regard  the  property  as  converted  into  personalty; 
and  its  view  of  the  law  on  this  question  has  been 
adopted  by  the  Illinois  and  Massachusetts  courts.8* 
In  coming  to  this  conclusion,  the  New  York  court 
dwells  upon  the  well-established  rules  that  the  succes- 
sion to  real  property  is  by  permission  of  the  state  in 
which  it  lies,  and  that  the  power  of  a  state  to  impose 
a  tax  affecting  real  property  is  restricted  to  such 
thereof1  as  it  has  jurisdiction  over.  And  the  court 

si  Estate  of  Mills,  86  App.  Div.  555,  67  N.  Y.  Supp.  956,  affirmed,  87 
App.  Div.  632,  84  N.  Y.  Supp.  1135,  177  N.  Y.  562,  69  N.  E.  1127; 
Estate  of  Wheeler,  1  Misc.  Kep.  450,  22  N.  Y.  Supp.  1075. 

82  Estate  of  Swift,  137  N.  Y.  77,  18  L.  R.  A.  709,  32  N.  E.  1096'; 
Estate  of  Curtis,  142  N.  Y.  219,  36  N.  E.  887;  Estate  of  Button,  3  App. 
Div.  208,  38  N.  Y.  Supp.  277,  affirmed  in  149  N.  Y.  618,  44  N.  E.  1128; 
Estate  of  Baker,  67  Misc.  Kep.  360,  124  N.  Y.  Supp.  827. 

88  Estate  of  Swift,  137  N.  Y.  77,  18  L.  B.  A.  709,  32  N.  E.  1096. 

84  Connell  v.  Crosby,  210  111.  380,  71  N.  E.  350;  McCurdy  v.  McCurdy, 
197  Mass.  248,  14  Ann.  Cas.  859,  16  L.  E.  A.,  N.  S.,  329,  83  N.  E.  881. 


PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX.      77 

declines  to  recognize  any  fiction  that  will  transmute 
the  situs  of  such  property  to  the  domicile  of  the  owner. 
' '  The  question  of  the  jurisdiction  of  the  state  is  one  of 
fact,  and  cannot  turn  upon  theories  or  fictions;  which, 
as  it  has  been  observed,  have  no  place  in  a  well-ad- 
justed system  of  taxation."  The  Illinois  court,  in  fol- 
lowing the  doctrine  thus  announced,  observes  that 
"the  doctrine  of  equitable  conversion  is  an  outgrowth 
of  the  maxim  of  equity,  that  in  a  court  of  equity, 
that  which  ought  to  have  been  done  is  to  be  regarded 
as  done.  The  doctrine  is  recognized  in  equity  only, 
and  is  not  given  effect  in  courts  of  law.  It  cannot 
be  applied  in  proceedings  for  the  collection  of  inherit- 
ance or  succession  taxes.""  And  the  Massachusetts 
court,  in  adopting  the  ruling  of  the  New  York  court, 
says,  '  *  the  law  of  equitable  conversion  ought  not  to  be 
invoked  merely  to  subject  property  to  taxation,  espe- 
cially when  the  question  is  one  of  jurisdiction  between 
different  states. ' '  *•  But  it  has  been  thought  equally 
objectionable  to  apply  the  rule  of  equitable  conversion 
for  the  purpose  of  subjecting  domestic  real  estate  to 
inheritance  taxation  which  would  otherwise  be  ex- 
empt." 

§  55.  Equitable  Conversion — Pennsylvania  Doc- 
trine.— But  in  Pennsylvania  the  doctrine  of  equitable 
conversion  has  been  more  favorably  received.  The 
courts  of  that  state  recognize,  however,  that  since  in- 
heritance taxes  attach  at  the  instant  of  death,  a  con- 
version must  be  referable  to  that  moment  in  order  to 
be  effectual  to  change  the  character  of  the  property 
from  real  to  personal  estate  for  purposes  of  inherit- 

8»  Connell  T.  Crosby,  210  HI.  380,  71  N.  E.  350. 

8«  McCurdy  v.  McCurdy,  197  Mass.  248,  14  Ann.  Cas.  859,  16  L.  E.  A., 
N.  S.,  329,  83  N.  E.  881. 

ST  Estate  of  Sutton,  3  App.  Div.  208,  38  N.  Y.  Supp.  277,  affirmed, 
149  N.  Y.  618,  44  N.  K  1128. 


78  INHERITANCE  TAXATION. 

ance  taxation;  but  when  a  direction  in  a  will  to  sell  is 
imperative,  the  Pennsylvania  courts  date  the  conver- 
sion from  the  time  of  death  by  applying  the  rule  that 
what  is  to  be  done  must  be  treated  in  equity  as  done 
already.  This  doctrine  has  been  declared  the  law  in 
several  cases,  even  as  to  land  situate  outside  of  the 
state.38  It  logically  follows,  and  has  been  so  held,  that 
where  land  in  Pennsylvania  is  owned  by  a  nonresident 
testator,  whose  will  works  an  equitable  conversion,  the 
land  becomes  personal  property,  follows  the  owner's 
domicile,  and  is  therefore  not  taxable  in  Pennsyl- 
vania.89 

But  where  a  conversion  is  to  take  place  only  in  the 
discretion  of  the  executors,  or  where  it  is  postponed 
to  some  future  date  by  the  express  direction  of  the  tes- 
tator, there  seems  to  be  no  doubt  that  land  must  in  the 
meantime  retain  its  character  as  realty  and  cannot 
be  subjected  to  inheritance  taxation  as  personal  prop- 
erty. This  rule  has  been  applied  in  cases  of  land  situ- 

ss  Miller  v.  Commonwealth,  111  Pa.  321,  2  Atl.  492;  Estate  of  William- 
son, 153  Pa.  508,  26  Atl.  246;  Estate  of  Handley,  181  Pa.  339,  37  Atl. 
587;  Estate  of  Dalrymple,  215  Pa.  367,  64  Atl.  554.  "There  is  no 
merit,"  it  is  said  in  the  Dalrymple  case,  "in  the  contention  that  the  will 
did  not  work  a  conversion  of  the  testator's  real  estate  in  Pennsylvania 
and  North  Dakota.  The  third  paragraph  of  the  will  provides:  'Inas- 
much as  I  have  certain  real  and  personal  property  belonging  to  me  situ- 
ated and  being  in  the  states  of  Pennsylvania  and  North  Dakota,  I  do 
hereby  expressly  direct  my  said  executors  and  trustees  or  their  successors 
in  the  trust  to  sell  the  same,  except  the  home  farm  hereinbefore  devised 
to  F.,  at  such  prices  and  upon  such  terms  as  they  may  deem  best,  and  to 
keep,  hold,  invest,  use  and  apply  the  money  or  other  proceeds  from  the 
sale  of  the  same  for  the  uses  and  purposes  mentioned  herein.'  This,  it 
will  be  observed,  is  an  express  direction  to  sell  the  real  estate  in  Penn- 
sylvania and  North  Dakota,  and  works  a  clear  and  immediate  conversion 
into  personalty.  It  is  therefore  subject  to  the  payment  of  a  collateral 
inheritance  tax." 

39  Estate  of  Coleman,  159  Pa.  231,  28  Atl.  137;  Estate  of  Shoenberger, 
221  Pa.  112,  128  Am.  St.  Rep.  737,  19  L.  R.  A.,  N.  S.,  290,  70  Atl.  579; 
Estate  of  Lamberton,  40  Pa.  Super.  Ct.  548. 


PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX.       79 

• 

ate  beyond  the  territorial  boundaries  of  the  state.40 
Yet  where  a  will  gave  the  executors  full  power  and 
discretion  to  sell  any  or  all  real  estate  whenever 
necessary  or  expedient,  and  it  became  necessary  in  the 
course  of  administration  to  make  such  sale  to  pay 
pecuniary  legacies,  it  was  held  that  the  value  of  the 

<o  Estate  of  Hale,  161  Pa.  181,  28  Atl.  1071;  Estate  of  Handley,  181 
Pa.  339,  37  Atl.  587.  In  this  last  case  the  court,  referring  to  the  previous 
Pennsylvania  decision  applying  the  doctrine  of  equitable  conversion  with- 
out regard  to  the  actual  situs  of  the  land,  said:  "These  cases  rest  on 
the  basis  that  the  testator  intended  nnd  directed  not  merely  a  nominal 
or  limited  conversion  but  an  actual  conversion  by  sale,  and  the  blending 
of  the  proceeds  with  his  other  personalty  for  purposes  of  administration 
under  his  will.  The  action  of  the  court  in  dating  such  conversion  from 
the  instant  of  death  was  but  the  application  of  the  general  rule  that 
what  is  to  be  done  must  be  treated  in  equity  as  done  already.  Though 
this  argument  is  severely  technical,  and  therefore  questionable  in  regard 
to  jurisdiction  to  tax  land  in  fact  situated  in  another  state,  yet  it  has 
the  merit  of  being  unanswerably  logical  if  the  premise  be  once  accepted. 
This  court  has  followed  the  argument  unswervingly  to  its  logical  con- 
clusion, even  when  the  result  seemed  contrary  to  the  express  legislative 
policy  of  the  state.  Thus  in  Coleman's  Estate,  159  Pa.  231,  28  Atl.  137, 
where  land  in  Pennsylvania  was  owned  by  a  testator  in  New  York  whose 
will  made  an  equitable  conversion,  the  logical  corollary  of  Miller  v. 
Commonwealth,  111  Pa.  321,  2  Atl.  492,  was  accepted  and  the  land  was 
held  to  have  become  personalty  and  to  follow  the  owner's  domicile,  and 
therefore  not  to  be  taxable  here.  All  our  cases  agree  that  the  status  of 
the  property  at  the  instant  of  death  must  govern  the  question  of  tax, 
both  as  to  liability  and  amount.  Where,  therefore,  the  conversion  is  not 
imperative,  but  only  permissive,  and  rests  in  the  discretion  of  the  ex- 
ecutors or  others,  it  does  not  become  operative  until  the  exercise  of  the 
discretion,  and  in  the  meantime  the  land  retains  its  normal  character. 
For  the  same  reasons,  where  the  conversion,  though  imperative,  is  not  in 
praesenti  but  in  futuro,  it  goes  into  effect  only  from  the  happening  of 
the  stipulated  contingency.  This  brings  us  to  the  exact  question  now 
before  us,  and  we  find  it  expressly  decided  in  Hale's  Estate,  161  Pa.  181, 
28  Atl.  1071.  The  testator  left  land  in  Missouri  to  his  wife  for  her  life, 
and  upon  her  death  directed  his  executors  to  sell  them  and  invest  the 
proceeds  in  mortgages  in  St.  Louis  and  pay  the  income  therefrom  to 
collaterals.  It  was  held  by  the  orphans'  court  of  Philadelphia  that  the 
proceeds  were  not  taxable  and  the  decision  was  affirmed.  The  auditing 
judge  put  his  conclusion 'directly  on  the  postponement  of  the  conversion, 
and  though  the  court  in  bank  referred  to  the  additional  circumstance  that 
the  proceeds  were  to  be  invested  in  mortgages  in  St.  Louis,  yet  it  is 
clear  that  that  was  not  a  material  point  in  the  ratio  decidendi.  Mort- 


80  INHERITANCE  TAXATION. 

land  in  o^her  states  was  subject  to  the  payment  of 
the  Pennsylvania  collateral  inheritance  tax.41 

§  56.  Estate  of  Surviving  Wife — Dower. — Widely 
divergent  views  have  been  entertained  as  to  whether 
the  estate  which  the  law  bestows  upon  a  surviving 
wife  is  subject  to  the  inheritance  tax.  Some  courts, 
apparently  supposing  that  this  estate  comes  to  her  by 
virtue  of  the  law  of  succession,  have  regarded  it  as 
liable  to  the  tax.  This  has  been  the  attitude  of  the 
Illinois  judiciary,  and,  as  will  presently  be  seen,  the 
California  as  well.  In  Illinois  the  right  of  a  widow 
is  held  subject  to  the  inheritance  tax,  whether  she  ac- 
cepts a  devise  for  her  benefit  or  elects  to  take  dower 
in  place  thereof.  "  Neither  dower  nor  any  provision 
made  in  lieu  of  dower  is  exempt. ' ' 42 
.  It  is  true  that  dower  has  its  origin  and  continuance 
by  force  of  the  law,  and  depends  upon  the  husband's 
death  for  its  consummation,  but  it  is  quite  another 

gages,  no  matter  what  the  situs  of  the  land  pledged,  are  personal  prop- 
erty, and  if  the  conversion  had  been  immediate,  no  direction  as  to  the 
investment  of  the  proceeds  could  have  exempted  them  from  the  tax. 
The  ground  of  the  decision,  which  is  the  logical  result  of  the  principles 
adopted  in  all  the  preceding  cases,  is  that  the  tax  is  assessable  at  the 
instant  of  death,  and  where  the  conversion  is  not  referable  to  that  same 
instant,  as  where  it  is  to  take  place  only  in  the  discretion  of  the  ex- 
ecutors, or  a  fortiori  where  it  is  postponed  by  the  express  direction  of 
the  testator,  the  land  in  the  meantime  retains  its  real  character,  and 
being  outside  the  state  is  not  subject  to  taxation." 

*i  Estate  of  Vanuxem,  212  Pa.  315,  1  L.  B.  A.,  N.  S.,  400,  61  Atl.  876. 

«  Billings  v.  People,  189  111.  472,  59  L.  R.  A.  807,  59  N.  E.  798, 
affirmed  (1903),  188  U.  S.  97,  47  L.  Ed.  400,  23  Sup.  Ct.  Rep.  272; 
People  v.  Field's  Estate,  248  111.  147,  33  L.  B.  A.,  N.  S.,  230,  93  N.  E. 
721.  In  this  last  case,  a  provision  for  the  wife  in  an  antenuptial  con- 
tract with  her  husband  was  held  in  lieu  of  and  a  substitute  for  her  dower 
and  other  rights  which  she  would  have  had  in  his  estate,  and  was  held 
subject  to  the  inheritance  tax.  Compare  Estate  of  Baker,  38  Misc.  Bep. 
151,  77  N.  Y.  Supp.  170,  in  note  on  page  81. 

In  People  v.  Nelms,  241  HI.  571,  89  N.  E.  683,  it  is  held  that  the  value 
of  the  dower  estate  should  be  deducted  from  the  beneficial  remainder 
interest  of  a  devisee  in  fixing  his  inheritance  tax. 


PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX.  81 

thing  to  suppose  that  the  estate  is  dependent  upon 
the  law  of  succession,  or  owes  its  existence  to  any 
such  transfer  as  the  inheritance  tax  statutes  con- 
template. Dower  comes  to  a  wife  by  virtue  of  the 
marriage,  and  the  death  of  the  husband  serves  only 
to  consummate,  not  to  transmit  it.  The  law  that 
confers  dower  on  a  widow  is  not  the  law  that  ap- 
points the  inheritable  property  of  a  decedent  to  desig- 
nated heirs.  The  New  York  courts  seem  to  have  come 
to  this  conclusion,  and  have  affirmed  that  dower  is 
neither  transferred  by  will  nor  by  the  intestate  laws, 
within  the  meaning  of  inheritance  tax  laws,  and  there- 
fore is  not  subject  to  the  transfer  tax;  but  where  the 
provisions  in  a  will  in  favor  of  the  widow  are  in  lieu 
of  dower,  and  she  elects  to  accept  them,  the  gift  is 
taxable,  since  it  is  a  transfer  by  will,  and  the  estate  is 
not  diminished  for  purposes  of  taxation  by  the  value 
of  her  dower  right.48  If  she  fails  to  comply  with 
the  statutory  provisions  relative  to  election,  she  will, 
for  purposes  of  the  tax,  be  presumed  to  have  decided 
to  take  under  the  will,  unless  she  is  entitled  to  her 

«»  Estate  of  Riemann,  42  Misc.  Rep.  648,  87  N".  Y.  Supp.  731;  Estate 
of  Barbey,  114  N.  Y.  725;  Estate  of  Weiler,  122-  N.  Y.  Supp.  608; 
Estate  of  Shields,  68  Misc.  Rep.  264,  124  N.  Y.  Supp.  1003.  The  widow's 
estate  in  dower  becomes  vested  on  her  marriage  and  consummate  upon 
the  death  of  the  husband,  independent  of  his  will:  Estate  of  Weiler,  122 
N.  Y.  Supp.  608. 

In  Estate  of  Baker,  38  Misc.  Rep.  151,  77  N.  Y.  Supp.  170,  it  is 
decided  that  where  an  antenuptial  contract  provided  that  the  husband 
should,  in  lieu  of  dower  and  her  rights  in  his  estate,  give  the  wife  a 
certain  sum  if  she  should  survive  him,  such  sum  is  not,  upon  his  death, 
subject  to  the  inheritance  tax. 

That  the  transfer  tax  cannot  be  avoided  by  a  legacy  to  the  widow  in 
consideration  of  her  releasing  dower,  see  Estate  of  De  Graaf,  24  Misc. 
Rep.  147,  53  N.  Y.  Supp.  591;  and  that  the  Illinois  statute  of  1895, 
exempting  a  life  estate  given  by  the  testator  to  his  widow,  does  not 
apply  when  she  renounces  the  provisions  of  the  will  and  elects  to  take 
other  interests  in  the  property,  see  Connell  Y.  Crosby,  210  111.  350,  71  N. 
E.350. 

e 


82  INHERITANCE  TAXATION. 

dower  in  addition  to  the  testamentary  provision  made 
for  her.4* 

The  doctrine  of  the  New  York  courts,  that  the 
widow's  dower  is  not  subject  to  the  inheritance  tax, 
prevails  in  Pennsylvania45  and  Tennessee.46  To  quote 
from  the  supreme  court  of  the  last  state:  "Whether  it 
be  considered  that  the  widow  holds  her  dower  in  the 
nature  of  a  purchaser  from  her  husband  by  virtue  of 
the  marriage  contract,  or  whether  it  be  merely  a  pro- 
vision of  the  law  made  for  her  benefit,  it  cannot  be 
considered  that  her  right  is  in  succession  to  that 
of  her  husband  upon  his  death,  or  that  the  husband 
bestows  it  upon  her  in  contemplation  of  death.  While 
it  is  true  that  her  right  to  dower  is  not  consummated 
until  the  death  of  her  husband,  and  that  it  is  carved 
out  of  only  such  realty  as  he  owned  at  his  death,  it 
does  not  follow  from  this  premise  that  the  widow  suc- 
ceeds to  his  title  by  the  intestate  laws.  She  derives 
it  by  virtue  of  the  marriage,  and  in  her  right  as  wife 
to  be  consummated  in  severalty  to  her  upon  the  death 
of  her  husband." 

In  Nebraska  the  widow  of  a  testator,  who  takes 
real  estate  devised  to  her  by  his  will  in  lieu  of  dower, 
is  not  in  a  position  to  require  the  taxing  authorities  to 
exempt  so  much  of  such  real  estate  as  equals  the  value 
of  her  dower  interest  from  the  payment  of  the  inherit- 
ance tax.47  A  gift  in  lieu  of  dower  of  a  specified 

4*  Estate  of  Stuyvesant,  72  Misc.  Eep.  295,  131  N.  T.  Supp.  197. 

45  Estate  of  Avery,  34  Pa.  204;  Estate  of  Small,  11  Pa.  Co.  Ct.  1. 

*«  Crenshaw  v.  Moore  (Tenn.),  137  S.  W.  924.  In  Memphis  Trust  Co. 
v.  Speed,  114  Tenn.  677,  88  S.  W.  321,  it  was  decided,  under  a  statute 
imposing  a  collateral  inheritance  tax,  except  on  the  property  passing  to 
the  widow,  that  where  a  nonresident  decedent  left  personalty  in  Ten- 
nessee, which  was  a  portion  of  the  residue  of  his  estate,  one-half  of  which 
he  willed  to  his  widow,  and  she  elected  to  take  one-half  thereof  in  kind, 
such  half  was  not  subject  to  the  tax;  citing  Matter  of  James,  144  N.  Y. 
6,  38  N.  E.  961. 

47  Estate  of  Sanford  (Neb.),  133  N.  W.  870. 


PROPERTY  AND  SUCCESSIONS  SUBJECT   TO  TAX.  83 

amount  annually,  payable  in  equal  quarterly  install- 
ments, is  held  not  an  annuity  in  Ohio.48 

§  57.  Estate  of  Surviving  Wife — Community  Prop- 
erty.— That  the  independence  of  dower  from  the  law 
of  succession  and  testamentary  disposition,  and  its 
consequent  exemption  from  inheritance  taxation,  have 
not  readily  been  discerned,  is  not  surprising,  in  view 
of  the  peculiar  features  of  dower  and  the  obscurity  of 
the  law  on  which  it  rests.  The  surprise  comes  when, 
in  a  jurisdiction  where  the  community  system  has 
been  adopted,  the  exemption  of  the  share  of  a  wife 
in  the  common  property  on  the  death  of  her  husband 
should  be  doubted.  Yet  that  doubt  has  arisen,  and,  in 
California,  has  been  resolved  adversely  to  the  wife. 
Some  years  ago  the  supreme  court  of  the  state  made 
the  startling  announcement  that  the  interest  of  a  wife 
in  the  community  property  during  the  lifetime  of  her 
husband  is  only  an  expectancy,  and  that  on  his  death 
she  takes  it  as  his  heir.49  This  notion  all  but  ignores 
the  community  property  rights  of  the  wife,  and  re- 
duces the  community  system  to  a  mere  name  without 
substance.  It  is  a  misconception  of  the  law,  and  has 
been  so  recognized  by  other  courts,50  but  it  is  still 
adhered  to  in  California,  with  the  result  that  the 
share  of  a  wife  in  the  community  property  is,  on  her 
husband's  death,  subject  to  the  inheritance  tax.51  Re- 
garding the  question  as  one  of  local  taxation,  the  su- 

«  Chisholm  v.  Shields,  67  Ohio  St.  374,  66  N.  E.  93. 

«  Matter  of  BunUck,  112  Cal.  387,  44  Pac.  734;  Spreckels  v. 
Spreckels,  116  Cal.  339,  58  Am.  St.  Rep.  170,  36  L.  R.  A.  497,  48  Pac. 
228;  Sharp  v.  Loupe,  120  Cal.  89,  52  Pac.  134,  586. 

BO  Warburton  v.  White,  176  U.  S.  485,  44  L.  Ed.  555,  20  Sup.  Ct.  Rep. 
404;  Arnett  v.  Reade,  220  U.  S.  311,  55  L.  Ed.  477,  31  Sup.  Ct.  R«p. 
425. 

6i  Estate  of  Moffitt,  153  Cal.  359,  20  L.  B.  A.,  N.  S.,  207,  95  Pac.  653, 
1025. 


84  INHERITANCE  TAXATION. 

• 

preme  court  of  the  United  States  has  declined  to  re- 
view the  decision  of  the  California  court.52 

Very  recently  the  supreme  court  of  Idaho  has  had 
this  question  before  it  for  determination,  and  has 
found,  contrary  to  the  California  court,  that  a  wife  is 
not  liable,  upon  the  death  of  her  husband,  to  pay  an 
inheritance  tax  on  her  half  of  the  community  property, 
for  the  reason  that  it  does  not  pass  to  her  "by  will 
or  by  the  intestate  laws. ' ' 82a  There  can  be  no  doubt 
that  the  Idaho  court  has  reached  the  right  conclusion. 
The  legislature,  in  adopting  the  community  system, 
intended  to  provide  a  real  marital  community  in  prop- 
erty and  accord  to  the  wife  a  fuller  measure  of  prop- 
erty rights  than  was  hers  under  the  common  law. 
The  legislature  did  not  suppose  it  was  providing  her 
a  mere  expectancy  during  the  husband's  life  and  an 
inheritance  on  his  death.  That  would  be  far  from 
what  is  contemplated  in  the  very  nature  of  community 
property.  And  certainly,  in  adopting  the  inheritance 
system  of  taxation,  the  legislature  did  not  have  in 
mind  the  exaction  of  tribute  from  the  community  in- 
terest of  a  wife  upon  the  death  of  her  husband.  In 
his  lifetime  such  interest  is  her  own  property,  prac- 
tically in  the  fullest  sense,  except  that  the  law  consti- 
tutes him  the  agent  for  its  control  and  management; 
and  the  removal  of  the  agent  by  death  in  nowise  works 
a  transmission  of  title  to  be  subjected  to  the  succession 
tax. 

Where  a  citizen  of  France  married  in  that  country 
without  any  express  antenuptial  contract,  and  sub- 
sequently immigrated  to  New  York,  acquired  real  and 
personal  property  in  that  state,  and  died  there  in- 
testate, his  widow  cannot  claim  one-half  of  the  prop- 
erty as  exempt  from  the  New  York  transfer  tax,  on 

"  Moffitt  v.  Kelly,  218  U.  S.  400,  54  L.  Ed.  1086,  31  Sup.  Ct.  Rep.  79. 
•2*  Kohny  v.  Dunbar  (Idaho),  121  Pac.  544. 


.PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX.      85 

the  ground  that  the  laws  of  France  give  the  wife  a 
community  of  interest  in  whatever  property  her  hus- 
band acquires.  The  New  York  law  controls.B2b 

In  Louisiana  the  surviving  spouse  does  not  acquire, 
in  usufruct,  the  estate  of  the  deceased  spouse  by  in- 
heritance, and  hence  the  right  of  usufruct  in  such  case 
is  not  subject  to  the  tax  imposed  on  inheritances.520 

§  58.  Estate  of  Surviving  Husband — Curtesy. — A 
surviving  husband  does  not  take  his  estate  of  curtesy 
in  his  wife's  real  property  by  virtue  of  the  intestate 
laws,  and  therefore  such  estate  is  not  subject  to  the 
transfer  tax.  Speaking  of  curtesy,  Justice  Thomas 
says:  ''Its  origin  and  continuance  is  due  to  the  law, 
but  not  the  law  that  appoints  the  inheritable  property 
of  an  intestate  to  prescribed  heirs.  It  is  unimportant 
in  the  present  inquiry  upon  what  theory,  adopted  at 
a  remote  time  and  now  obscured  in  motive,  the  law 
proceeded  in  making  this  transfer  to  the  husband. 
It  is  only  necessary  to  establish  that  it  was  not  and  is 
not  an  intestate  law. ' '  " 

It  has  been  adjudged  in  New  York  that  where  a 
woman,  a  resident  of  the  state,  dies  without  a  will, 
leaving  a  husband  but  no  descendants,  there  is  no 
taxable  transfer  to  him  of  her  personal  property,  for 
he  does  not  take  by  the  intestate  laws.  "Her  intes- 
tacy was  the  condition  of  his  taking,  but  not  the 

source  of  his  estate He  took  title  upon  her  death 

intestate,  but  not  by  a  transfer  thereby  created.  From 
the  fact  that  she  did  not  devise  it  arises  the  fact  that 
his  right  to  take  was  not  destroyed.  She  was  capable 
of  forestalling  and  preventing  an  estate,  but  could  not 
make  such  estate.  She  simply  did  not  preclude  the 

«b  Estate  of  Majot,  199  N.  Y.  29,  92  N.  E.  402. 
B2o  Succession  of  Marsal,  118  La.  212,  42  South.  778. 
68  Estate   of   Starbuck,    137   App.   Div.   866,   122   N.   Y.   Supp.   584, 
affirmed,  201  N.  Y.  531,  94  N.  E.  1098. 


86  INHERITANCE  TAXATION. 

operation  of  law  that  matured  it  upon  her  death.  But 
when  one  seeks  for  any  act  on  her  part,  it  cannot  be 
found.  His  estate  did  not  spring  from  her  forbear- 
ance. He  is  indebted  to  such  forbearance  for  ob- 
taining what  the  law  provides  for  him,  but  nothing 
more. ' ' " 

The  New  York  statute  relative  to  the  taxation  of 
estates  by  the  curtesy  was  amended  in  1911."* 

§  59.  Articles  Exempt  to  Widow  and  Children. — 
Articles  exempt  to  the  widow  and  minor  children  of 
the  decedent  are  not  subject  to  the  New  York  transfer 
tax,  whether  or  not  they  have  been  actually  set  apart 
and  whether  or  not  the  decedent  died  testate.  They 
do  not  pass  by  last  will  and  testament  nor  by  the 
intestate  law.65  But  if  he  was  not  possessed  at  the 
time  of  his  death  of  the  exempt  articles  named  in  the 
statute,  his  widow  and  minor  children  are  not  entitled 
to  have  the  money  equivalent  of  such  articles  deducted 
from  the  value  of  the  estate  in  fixing  the  amount  of 
the  tax.66 

§  60.  Homestead  and  Family  Allowance. — Where 
a  homestead  is  set  apart  absolutely  by  the  probate 
court  to  the  widow,  her  title  is  in  no  way  derived  from 
the  will  of  the  husband,  nor  by  virtue  of  the  law  of 
succession.  The  title  is  deraigned  solely  from  the 
order  of  court.  And  money  paid  from  the  funds  of 
the  estate,  by  order  of  court,  for  the  maintenance  of 
the  widow  and  children,  stands  on  the  same  basis. 
That  she  would  have  received  the  realty  set  apart  as 
the  homestead,  and  the  money  paid  as  the  family  al- 

«*  Estate  of  Green,  68  Misc.  Eep.  1,  124  N.  Y.  Supp.  863,  154  App.  Div. 
232,  129  N.  Y.  Supp.  54. 

8*»  Section  24  of  New  York  statute,  post. 

6»  Estate  of  Page,  39  Misc.  Eep.  220,  79  N.  Y.  Supp.  382. 

68  Estate  of  Libolt,  102  App.  Div.  29,  92  N.  Y.  Supp.  175. 


PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX.       87 

lowance,  as  sole  devisee  and  legatee,  if  there  had  been 
no  orders  therefor  by  the  probate  court,  is  immaterial. 
Therefore,  as  the  homestead  and  family  allowance 
pass  by  virtue  of  the  orders  of  the  court  as  a  right 
bestowed  by  the  beneficence  of  the  law,  and  not  by 
"will"  or  the  "intestate  laws/'  they  are  not  subject 
to  the  inheritance  tax.87 

§  61.  Bequests  for  Funeral  or  Burial  Expenses. — 
In  New  York  a  bequest  for  the  maintenance  of  the 
decedent's  burial  lot  has  been  held  exempt  from  in- 
heritance taxation  as  burial  expenses,58  and  a  transfer 
of  stock  in  trust  for  the  erection  of  a  monument  to 
the  donor  and  the  care  of  his  grave  is  held  within 
this  rule.69  But  the  supreme  court  of  that  state  has 
quite  recently  decided  that  a  bequest  to  a  foreign 
cemetery  association,  the  interest  to  be  used  in  keep- 
ing the  testator's  "lot  in  condition  forever,"  is  sub- 
ject to  the  transfer  tax.60  Said  the  court  in  this  case: 
"In  Matter  of  Vinot,61  Surrogate  Ransom  held  that  a 
bequest  of  one  thousand  dollars  to  an  association,  the 
income  of  which  was  to  be  applied  to  the  care  and 
preservation  of  the  burial  plot  of  decedent,  was  not 
taxable.  As  this  decision  has  not  been  overruled  by 
a  higher  court,  it  might  be  considered  as  a  controlling 
authority  in  this  case.  In  view,  however,  of  the  lan- 
guage of  the  court  of  appeals  in  the  Gould  case,62  and 
of  the  appellate  division  in  the  McAvoy  case,83  it 
would  appear  that  the  decision  in  Matter  of  Vinot 

or  Estate  of  Kennedy,  157  Cal.  517,  29  L.  B.  A.,  N.  S.,  428,  108  Pac. 
280. 

es  Matter  of  Vinot,  7  N.  Y.  Supp.  517. 

6»  Estate  of  Edgerton,  35  App.  Div.  125,  54  N.  Y.  Supp.  700,  affirmed 
in  158  N.  Y.  671,  52  N.  E.  1124. 

«o  Estate  of  Fay,  62  Misc.  Eep.  154,  116  N.  Y.  Supp.  423. 

«i  Estate  of  Vinot,  7  N.  Y.  Supp.  517. 

ez  Estate  of  Gould,  156  N.  Y.  423,  51  N.  E.  287. 

«»  Estate  of  McAvoy,  112  App.  Div.  377,  93  N.  Y.  Supp.  437. 


88  INHERITANCE  TAXATION. 

would  scarcely  meet  with  the  approval  of  the  appellate 
courts  at  the  present  time.  In  the  Gould  case  it  was 
held  that  the  property  was  taxable,  although  be- 
queathed for  the  purpose  of  satisfying  a  contractual 
obligation  existing  at  the  time  of  decedent's  death, 
and  in  the  McAvoy  case  it  was  held  that  the  bequest 
was  taxable,  although  the  beneficiary  received  it  in 
payment  of  services  to  be  rendered. thereafter.  While 
it  has  been  held  that  a  sum  spent  by  an  executor  in  the 
erection  of  a  monument  to  decedent  is  exempt,64  and 
that  a  reasonable  sum  spent  in  the  purchase  of  a  burial 
plot  for  decedent  may  be  regarded  as  a  part  of  the 
funeral  expenses  and,  therefore,  a  proper  deduction,85 
there  is  a  manifest  distinction  between  such  expendi- 
tures made  by  an  executor  in  his  discretion  and  a 
bequest  made  by  decedent  in  his  last  will  to  a  certain 
beneficiary  and  for  a  certain  specific  purpose." 

In  the  latest  New  York  decision  on  this  question  it 
is  affirmed  that  the  funeral  expenses  of  the  decedent 
are  exempt  from  the  transfer  tax,  and  that,  as  a  part 
of  such  expenses,  may  properly  be  included  sums  ex- 
pended for  a  burial  lot  and  the  erection  of  a  suitable 
monument,  and  the  cost  of  keeping  them  in  repair." 

In  a  proceeding  to  collect  a  collateral  inheritance  tax 
under  a  statute  subjecting  all  property  passing  by  will 
after  the  payment  of  all  debts,  and  providing  further 
that  the  word  "debt"  shall  include  a  reasonable  sum 
for  funeral  expenses,  a  testator  may  set  aside  a  sum 
to  erect  a  tomb  for  himself,  since  it  cannot  be  said 
that  that  form  of  burial  is  unreasonable.67 

«*  Estate  of  Edgerton,  35  App.  Div.  125,  54  N.  Y.  Supp.  700,  affirmed, 
158  N.  Y.  671,  52  N.  E.  1124. 

•«  Estate  of  Liss,  39  Misc.  Eep.  123,  78  N.  Y.  Supp.  969. 

««  Estate  of  Maverick,  135  App.  Div.  44,  119  N.  Y.  Supp.  914,  affirmed, 
198  N.  Y.  618,  92  N.  E.  1084. 

87  Morrow  v.  Durant,  140  Iowa,  437,  17  Ann.  Gas.  850,  23  L.  B.  A.,  N. 
S.,  474,  118  N.  W.  781. 


PROPERTY   AND  SUCCESSIONS  SUBJECT   TO   TAX.  89 

§  62.  Policy  of  Life  Insurance. — The  proceeds  of 
a  policy  of  life  insurance  payable  to  the  insured,  his 
executors  and  assigns,  is  property  owned  by  him  at 
his  death,  within  the  meaning  of  the  inheritance  tax 
law,  and  therefore  is  subject  to  taxation.  It  is  imma- 
terial that  the  policy  or  its  proceeds  are  not  subject 
to  taxation  under  the  general  tax  law  of  the  state. 
The  inheritance  tax  statute  ''proceeds  upon  a  new 
theory  of  the  right  of  the  government  to  tax  and  estab- 
lishes a  new  system  of  taxation.  It  taxes  the  right  of 
succession  to  property,  and  measures  the  tax  in  the 
method  specifically  prescribed.  All  property  having 
an  appraisable  value  must  be  considered,  whether  it 
is  such  as  might  be  taxed  under  the  general  law  or  not. 
Many  kinds  of  property  might  be  enumerated  which 
are  not  assessable  under  the  general  law,  but  which  are 
appraisable  under  the  collateral  inheritance  act. 
The  definition  of  the  different  kinds  of  property  which 
the  legislature  has  incorporated  in  the  general  tax  law 
for  the  purposes  of  that  law  cannot  be  imported  into 
the  collateral  inheritance  tax  law  upon  any  sound  prin- 
ciple of  statutory  construction.  It  is,  therefore,  im- 
material whether  life  insurance  policies  can  be  valued 
and  assessed  for  taxation  under  the  general  law. ' ' 88 

The  question  whether  the  proceeds  of  a  policy  on  the 
life  of  a  nonresident  are  subject  to  the  inheritance  taxa- 
tion is  sometimes  attended  with  difficulties.  In  New 
York  it  has  been  decided  that  where  a  policy  of  life 
insurance  was  issued  by  a  domestic  company  to  a  non- 
resident, and  the  policy  was  kept  out  of  the  state  and 
was  there  enforceable,  the  proceeds  paid  to  a  foreign 
executor  are  not  subject  to  inheritance  taxation.69  It 

«»  Estate  of  Knoedler,  140  N.  Y.  377,  35  N.  E.  601. 

•»  Estate  of  Gordon,  186  N.  Y.  471,  10  L.  B.  A.,  N.  S.,  1089,  79  N. 
E.  722.  To  the  same  effect  is  In  re  Abbett,  29  Misc.  Rep.  567,  61  N.  Y. 
Supp.  1067.  The  following  extract  is  from  the  opinion  of  the  above 
Gordon  case:  "If  the  contract  in  this  case  is  subject  to  the  imposition 


90  INHERITANCE  TAXATION. 

has  also  been  held  in  New  York  that  policies  of  insur- 
ance issued  by  foreign  companies  on  the  life  of  a 
nonresident  decedent  are  not  taxable,  where  they  were 
enforceable  without  seeking  the  intervention  of  the 
courts  of  this  state,  though  they  were  in  this  state  at 
the  time  of  the  decedent's  death;70  and  that  a  policy 
issued  by  a  domestic  corporation  upon  the  life  of  a 
nonresident  is  subject  to  the  transfer  tax,  although 
kept  by  the  decedent  in  this  state  and  here  collected/1 
This  question  of  the  situs  of  choses  in  action  and  other 
personal  property  for  the  purpose  of  taxation  will  be 
considered  at  length  in  a  subsequent  chapter. 

Where  a  testator  assigned  to  his  wife,  more  than  a 
year  prior  to  his  death,  policies  -of  life  insurance  pay- 
able to  him  if  he  survived  the  endowment  period, 
otherwise  to  his  estate,  and  before  his  death,  at  his 
request,  the  assignments  were  duly  indorsed  upon  the 
books  of  the  company  and  indorsements  recognizing 

of  a  transfer  tax,  then  any  contract  of  insurance  issued  to  a  nonresident, 
passing  to  and  held  by  his  nonresident  representatives  or  assigns,  and 
being  administered  and  enforceable  in  a  foreign  jurisdiction,  whether  in 
the  state  of  Texas  or  California,  or  in  some  foreign  country,  would  afford 
the  basis  of  taxation  in  this  state,  provided  only  the  policy  was  issued 
by  a  New  York  corporation  and  access  could  be  obtained  by  the  tax 
collector  to  its  proceeds.  No  distance  of  domicile  of  the  assured  and  his 
transferees  or  beneficiaries,  and  no  completeness  of  foreign  jurisdiction 
over  administration  and  enforcement,  and  no  lack  of  anticipation  of 
such  a  result  upon  the  part  of  the  assured,  would  be  a  bar  to  the  at- 
tempted application  of  the  taxing  power.  It  requires  no  great  imagi- 
native processes  to  picture  the  limits  and  the  disapproval  and  friction 
to  which  this  theory  would  lead  if  logically  carried  to  its  full  length. 
It  was  undoubtedly  the  intent  of  the  legislature  that  the  statute  under 
consideration  should  be  liberally  construed  to  the  end  of  taxing  the 
transfer  of  all  property  which  fairly  and  reasonably  could  be  regarded 
as  subject  to  the  same,  and  this  court  has  unequivocally  placed  itself  upon 
record  in  favor  of  construing  the  statute  in  the  light  of  such  intent.  But 
the  proposition  now  propounded,  if  adopted,  would  lead  far  beyond  any 
point  which  has  thus  far  been  reached,  and  we  do  not  believe  that  it 
would  be  wise  or  practicable  to  adopt  it." 

TO  Estate  of  Gibbs,  60  Misc.  Rep.  645,  113  N.  Y.  Supp.  939. 

ti  Estate  of  Horn,  39  Misc.  Rep.  133,  78  N.  Y.  Supp.  979. 


PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX.  91 

the  same  were  attached  to  the  policies,  the  assignment 
was  held  to  have  vested  the  right  to  the  policies  in 
the  wife  when  completed  by  acceptance  and  recogni- 
tion, and  not  to  take  effect  at  the  death  of  the  testator 
so  as  to  render  them  subject  to  the  transfer  tax.72 
And  where  a  life  policy,  payable  to  the  widow  of  the 
insured  with  no  right  reserved  to  change  the  benefi- 
ciary, was  assigned  to  the  trustee  in  a  testamentary 
trust  created  by  the  insured,  but  the  beneficiary  did 
not  relinquish  her  rights  in  the  policy,  it  was  held  not 
subject  to  the  inheritance  tax  as  a  part  of  his  estate.73 
Where  the  contract  of  an  agent  with  an  insurance 
company  provides  that  in  case  he  dies  while  the 
agency  still  continues,  his  heirs  shall  be  entitled  to  a 
commission  of  five  per  cent  on  the  amount  received 
by  the  company  on  the  renewal  of  certain  policies, 
at  his  death  his  heirs  inherit,  not  any  part  of  the 
premiums,  but  merely  a  right  to  be  paid  by  the  in- 
surance company  a  certain  amount  of  money  to  be 
computed  on  the  premiums,  and  accordingly  an  inherit- 
ance tax  is  due  on  the  right  or  claim  thus  inherited, 
although  the  premiums  were  assessed  to  the  company 
and  taxes  were  regularly  paid  on  them,  and  the  compu- 
tation of  the  commission  was  made  only  after  deduc- 
tion of  the  taxes  thus  paid.7* 

§  63.  Deposits  in  Bank. — If  money  on  hand  or  in 
deposit  belonged  solely  or  absolutely  to  the  decedent 
at  the  time  of  his  death,  there  can  of  course  be  no 
doubt  that  it  is,  like  other  forms  of  property,  subject 
to  the  inheritance  tax.  But  where  money  has  been 

«  Estate  of  Parson,  51  Misc.  Eep.  370,  101  N.  Y.  Supp.  430,  affirmed 
in  117  App.  Div.  321,  102  N.  Y.  Supp.  168. 

78  Estate  of  Bullen,  143  Wis.  512,  139  Am.  St.  Rep.  1114,  128  N.  W. 
109. 

T*  Succession  of  Fell,  119  La.  1037,  15  L.  R.  A.,  N.  S.,  267,  44  South. 
879. 


92  INHERITANCE  TAXATION. 

deposited  jointly  with  another  or  in  trust  for  another, 
it  frequently  becomes  a  matter  of  unusual  difficulty  to 
determine  whether  or  not  the  tax  can  be  enforced 
against  it.  It  has  been  affirmed  that  if  a  savings 
bank  deposit  is  a  mere  tentative  trust,  revocable  by 
the  depositor  during  his  lifetime,  it  is  taxable  upon 
his  death  although  the  trust  then  becomes  absolute 
and  irrevocable.78  One  depositing  his  own  money  in 
a  savings  bank  in  trust  for  his  children,  but  retaining 
the  right  to  withdraw  the  funds  at  pleasure,  thereby 
grants  them  an  interest  taking  effect  in  possession  or 
enjoyment  at  his  death,  and  as  such  the  funds  are 
taxable;  for  in  such  case  the  owner  reserves  to  himself 
all  the  rights  of  ownership  in  the  deposit  until  his 
death,  and  grants  only  an  interest  to  take  effect  in 
possession  or  enjoyment  after  that  event.78 

But  a  joint  deposit  in  a  savings  bank,  made  of 
sums  previously  given  by  a  man  to  his  wife,  is  not 
taxable  upon  his  death ; "  although  it  has  been  de- 
cided that  a  deposit  of  money  belonging  to  each  to 
their  joint  credit  by  a  husband  and  wife  in  a  savings 
bank  indicates  that  on  the  death  of  either  the  fund 
belonging  to  the  other  shall  pass  to  the  survivor,  so 
that  such  transfer  is  subject  to  the  inheritance  tax.78 

Where  a  man  gave  stock  to  his  wife,  and  the  divi- 
dends were  deposited  at  the  time  of  his  death  in  a 
bank  to  the  credit  of  both,  which  deposit  was  subject 
to  withdrawal  by  either  or  the  survivor,  the  money 
was  held  not  subject  to  the  inheritance  tax.79  And  on 
the  death  of  a  married  woman,  it  was  decided  that 
balances  in  joint  account  belonging  to  her  and  her  hus- 

«  Estate  of  Pierce,  132  App.  Div.  465,  116  N.  Y.  Supp.  816. 
re  Estate  of  Barbey,  114  N.  Y.  Supp.  725. 
TT  Estate  of  Rosenberg,  114  N.  Y.  Supp.  726. 

19  Estate  of  Kline,  65  Misc.  Rep.  446,  121  N.  Y.  Supp.  1090.     See, 
also,  Estate  of  Wilkens,  144  App.  Div.  803,  129  N.  Y.  Supp.  600. 
T»  Estate  of  Graves,  52  Misc.  Rep.  433,  103  N.  Y.  Supp.  571. 


PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX.       93 

band  were  not  subject  to  inheritance  taxation.  Such 
deposit  is  presumably  a  contract  of  joint  ownership, 
vested  in  both  parties  at  once,  with  equal  right  to 
use  and  draw  from  the  same  during  the  lifetime  of 
both,  unless  exhausted  sooner,  including  the  right  of 
survivorship  to  whatever  might  remain  upon  the  death 
of  the  joint  owner  dying  first.  That  the  deposit  may 
come  to  the  survivor  is  but  an  incident;  and  the  trans- 
fer is  not  one  to  take  effect  in  use  or  enjoyment  after 
death,  within  the  meaning  of  the  transfer  tax  stat- 
ute.79* 

§  64.  Corporate  Stock  and  Bonds. — Corporate  stock 
and  bonds,  as  well  as  cash,  are,  when  their  situs  can 
properly  be  regarded  as  within  the  state,  subject  to 
the  inheritance  tax  which  it  imposes.80  The  difficulty 
in  determining  the  applicability  of  the  tax  to  such 
forms  of  property  is  to  fix  the  situs,  for  it  may,  and 
not  infrequently  does,  happen  that  the  corporation  is 
organized  under  the  laws  of  one  state,  and  the  owner 
dies  domiciled  in  another  state,  while  the  stock  is 
perhaps  physically  in  a  third  state.  The  considera- 
tion of  this  phase  of  the  subject,  however,  will  be 
postponed  to  the  chapter  on  "  Situs  of  Property  for 
Purposes  of  Taxation." 

A  bequest  to  a  corporation  of  its  debenture  bonds 
passes  property  to  the  legatee,  and  the  bonds  may  be 
assessed  at  their  market  value.81  Where  one  has 
pledged  stock  as  collateral  security,  and  his  executor 
has  paid  the  loan  and  redeemed  the  stock,  it  is  pres- 
ently taxable  as  part  of  the  estate.82  But  stock  pur- 

T9»  Estate  of  Stebbins,  52  Misc.  Rep.  438,  103  N.  Y.  Supp.  563. 

so  Oallahan  v.  Woodbridge,  171  Mass.  595,  51  N.  E.  176;  Matter  of 
Whiting,  150  N.  Y.  27,  55  Am.  St.  Rep.  640,  34  L.  R.  A,  232,  44  N.  E. 
715. 

«i  Estate  of  Rothschild,  71  N.  J.  Eq.  210,  63  AtL  615,  affirmed,  72 
N.  J.  Eq.  425,  65  Atl.  1118. 

«  Estate  of  Hurcomb,  36  Misc.  Rep.  755,  74  N.  Y.  Supp.  475. 


94  INHERITANCE  TAXATION. 

chased  by  a  broker  for  a  customer,  and  held  as  se- 
curity for  the  payment  of  the  purchase  price,  is  not 
taxable  after  the  customer's  death,  for  the  broker  is 
the  owner  subject  to  the  customer's  right  as  pledgee.88 
In  Louisiana  the  only  property  excepted  from  the 
inheritance  tax  is  such  as  shall  have  borne  its  just 
proportion  of  taxes  prior  to  the  opening  of  the  suc- 
cession. State  and  municipal  bonds,  though  exempt 
from  taxation,  do  not  fall  within  the  exception,  nor  do 
shares  of  stock  not  taxed,  though  the  corporation  in 
which  they  are  held  may  have  been  taxed  on  its  prop- 
erty.8* 

§  65.    Shares    in    Joint    Stock    Association. — The 

stock  of  a  joint  stock  association  is  similar  in  its  na- 
ture to  the  stock  of  a  corporation,  and  the  latter  is 
regarded  as  personal  property,  irrespective  of  what 
the  character  of  the  corporate  property  may  be.  Ac- 
cordingly, shares  in  a  joint  stock  association  are  to 
be  dealt  with  as  personalty  in  applying  laws  provid- 
ing an  inheritance  tax,  although  the  property  of  the 
association  is  real  estate.  In  determining,  for  the 
purpose  of  this  tax,  the  value  of  shares  in  a  joint  stock 
association  which  are  not  listed  in  the  stock  exchange 
or  sold  in  the  open  market,  the  value  of  the  property 
they  represent,  including  the  real  estate,  should  be 
ascertained.84* 

§  66.  United  States  Bonds  and  Securities. — The 
law  is  well  settled  that  a  transfer  of  United  States 
bonds  or  securities  by  will  or  succession  is  subject  to 
taxation  under  the  inheritance  tax  laws  of  the  several 
states,  unless  the  statutes  are  so  drawn  as  to  exempt 
such  property.  There  is  no  doubt  that  the  legislature 

•3  Estate  of  Havemeyer,  32  Misc.  Rep.  416,  66  N.  Y.  Supp.  722. 

«*  Succession  of  Kohn,  115  La.  71,  38  South.  898. 

s*a  Estate  of  Jones,  172.  N.  Y.  575,  60  L.  K.  A.  476,  65  N.  E.  570. 


PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX.       95 

of  a  state  is  competent  to  impose  such  a  tax,  since 
the  charge  is  not  on  the  bonds  or  securities  themselves, 
but  rather  upon  the  transfer  thereof  or  the  privilege 
of  receiving  them  by  will  or  descent,  and  such  condi- 
tions can  be  imposed  on  that  privilege  as  the  law- 
making  power  may  see  fit.  Such  is  the  holding  of 
various  state  courts  and  also  of  the  federal  courts. 
The  fact  that  the  property  itself  is  exempt  from  taxa- 
tion is  therefore  immaterial.  And  the  tax  cannot  be 
assailed  on  the  ground  that  it  impairs  the  obligation 
of  contract  or  the  borrowing  power  of  the  United 
States  government.86 

The  transfer  by  will  or  descent  of  United  States 
bonds  is  not  exempt  from  the  operation  of  the  federal 

««  Plummer  v.  Coler,  178  U.  S.  115,  44  L.  Ed.  998,  20  Sup.  Ct.  Eep. 
829;  Orr  v.  Gilman,  183  U.  S.  278,  46  L.  Ed.  196,  22  Sup.  Ct.  Rep.  213; 
Succession  of  Levy,  115  La.  377,  5  Ann.  Gas.  871,  8  L.  R.  A.,  N.  S.,  1180, 
39  South.  37,  affirmed,  Cahen  v.  Brewster  (1906),  203  U.  S.  543,  8  Ann. 
Cas.  215,  51  L.  Ed.  310,  27  Sup.  Ct.  Rep.  174;  Estate  of  Sherman,  153 
N.  Y.  1,  46  N.  E.  1032;  Estate  of  Whiting,  2  App.  Div.  590,  38  N.  Y. 
Supp.  131;  Estate  of  Carver,  4  Misc.  Rep.  592,  25  N.  Y.  Supp.  991; 
Matter  of  Howard,  5  Dem.  Sur.  483;  Strode  v.  Commonwealth,  52  Pa. 
181;  Wallace  v.  Myers,  38  Fed.  184,  4  L.  R.  A.  171. 

The  supreme  court  of  the  United  States  in  Plummer  v.  Coler,  178 
U.  S.  115,  44  L.  Ed.  998,  20  Sup.  Ct.  Rep.  829,  in  recognizing  the  right 
of  one  of  the  states  of  the  Union  to  impose  a  tax  on  a  transfer  of  United 
States  bonds,  uses  this  language:  "In  Pennsylvania  it  has  been  re- 
peatedly held  that  the  collateral  inheritance  law  of  that  state,  imposing 
a  tax  upon  the  total  amount  of  the  estates  of  decedents,  is  valid,  al- 
though the  estate  may  consist  in  whole  or  in  part  of  United  States 
bonds ;  and  this  upon  the  principle  that  what  is  called  a  collateral  inherit- 
ance tax  is  a  bonus,  exacted  from  the  collateral  kindred  and  others, 
as  the  conditions  on  which  they  may  be  admitted  to  take  the  estate  left 
by  deceased  relative  or  testator;  that  the  estate  does  not  belong  to  them, 
except  as  a  right  to  it  is  conferred  by  the  state;  that  the  right  of  the 
owner  to  transfer  it  to  another  after  death,  or  of  kindred  to  succeed, 
is  the  result  of  municipal  regulation,  and  must,  consequently,  be  en- 
joyed subject  to  such  conditions  as  the  state  sees  fit  to  impose."  The 
court  then '  adopts  with  approval  the  language  of  Justice  Andrew  in 
Estate  of  Sherman,  153  N.  Y.  1,  46  N.  E.  1032,  as  follows :  "This  court 
has  not  been  called  upon  to  consider  the  question  of  the  power  of  the 
state  to  prescribe  that  in  ascertaining  the  value  of  the  property  of  a 
decedent  for  the  purpose  of  fixing  a  tax,  under  the  collateral  inherit- 


96  INHERITANCE  TAXATION. 

war  revenue  act  of  1898,  by  reason  of  the  declaration 
in  United  States  statutes  and  on  the  face  of  the  bonds 
themselves  to  the  effect  that  they  are  exempt  from 
taxation,  for,  as  above  stated,  the  tax  is  not  upon  the 
bonds  but  upon  the  transmission  thereof." 

The  New  York  statute  of  1892  imposes  a  tax  on  the 
transfer  of  property  "over  which  this  state  has  any 
jurisdiction  for  purposes  of  taxation";  and  under  this 
statute  United  States  bonds  are  held  exempt  from  in- 
heritance taxation,  since  the  state  has  no  jurisdiction 
over  them  for  " purposes  of  taxation."87  To  quote 
from  the  supreme  court 88  of  that  state :  '  *  The  law  in 
respect  to  taxable  transfers  of  property  in  force  at  the 
time  of  the  death  of  the  testator  only  permitted  the 
imposition  of  such  tax  upon  property  *  over  which  this 
state  has  any  jurisdiction  for  the  purpose  of  taxation. ' 
It  does  not  require  the  citation  of  authorities  to  show 
that  a  state,  in  the  exercise  of  the  power  of  taxation, 

ance  or  transfer  tax  laws,  the  value  of  federal  securities  owned  by  the 
decedent  shall  be  included.  But  we  apprehend  that  the  existence  of  the 
power  cannot  be  denied  upon  reason  or  authority.  The  tax  imposed 
is  not,  in  a  proper  sense,  a  tax  upon  the  property  passing  by  will,  or 
under  the  statutes  of  descent  or  distribution.  It  is  a  tax  upon,  the 
right  of  transfer  by  .will  or  under  the  intestate  law  of  the  state. 
Whether  these  laws  are  regarded  as  a  limitation  on  the  right  of  the 
testator  to  dispose  of  property  by  will,  or  upon  the  right  of  devisees 
to  take  under  a  will,  or  the  right  of  heirs  or  next  of  kin  to  succeed  to 
a  property  of  an  intestate,  is  not  material.  The  so-called  tax  is  an  exac- 
tion made  by  the  state  in  the  regulation  of  the  right  of  devolution  of 
property  of  decedents,  which  is  created  by  law  and  which  the  law  may 
restrain  or  regulate.  Whatever  the  form  of  the  property,  the  right  to 
succeed  to  it  is  created  by  law,  and  if  the  property  consists  of  govern- 
ment securities,  the  transferee  derives  his  right  to  take  them,  as  he  doea 
his  right  to  take  any  property  of  the  decedent,  under  the  laws  of  the 
state,  and  the  state  by  these  statutes  makes  the  right  subject  to  the 
burden  imposed." 

se  Murdock  v.  Ward,  178  U.  S.  139,  44  L.  Ed.  1009,  20  Sup.  Ct.  Rep. 
775. 

87  Estate  of  Whiting,  150  N.  Y.  27,  55  Am.  St.  Rep.  640,  34  L.  E.  A. 
232,  44  N.  E.  715 ;  Estate  of  Sherman,  153  N.  Y.  1,  46  N.  E.  1032. 

M  Estate  of  Coogan,  27  Misc.  Eep.  563,  59  N.  Y.  Supp.  111. 


PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX.       97 

has  no  jurisdiction  to  tax  the  obligations  of  the 
United  States,  in  violation  of  the  provisions  of  the 
United  States  statutes  exempting  them  from  taxation. 
And  it  has  recently  been  held  in  this  state  that  United 
States  bonds  are  exempt  from  assessment  and  taxa- 
tion, under  the  transfer  tax  law  of  1892,  because  they 
are  property  over  which  the  state  had  no  jurisdiction 
for  the  purposes  of  taxation.88  That  being  so,  the  sur- 
rogate had  no  jurisdiction  to  assess  a  tax  on  the  trans- 
fer of  these  bonds,  and  the  tax  was  not  merely  an  er- 
roneous one,  but  illegal  for  want  of  any  jurisdiction 
to  impose  it." 

It  has  been  decided  that  United  States  bonds  be- 
longing to  a  nonresident,  actually  within  the  state  of 
New  York,  were  not,  in  October,  1891,  property  within 
the  meaning  of  the  New  York  tax  law,  but  were  obliga- 
tions for  the  payment  of  money,  and  not  subject  to  the 
transfer  tax.90 

§  67.  Legacy  to  the  United  States.— The  United 
States  is,  as  a  government  and  a  body  politic  and 
corporate,  capable  of  taking  a  legacy;  and  such  leg- 
acy is  subject  to  state  inheritance  taxation,  and  cannot 
be  claimed  as  exempt  on  the  ground  that  the  tax  is 
on  United  States  property,  nor  on  the  ground  that  it 
is  imposed  upon  transfers  "to  persons  or  corporations 
exempt  by  law  from  taxation."  The  tax  is  not  on 
the  property,  but  on  the  transfer  thereof.  In  effect, 
it  limits  the  power  of  testamentary  disposition.  This 
silences  the  argument  that  to  enforce  the  tax  would 
violate  the  well-recognized  rule  that  a  state  cannot 
tax  the  property  of  the  United  States.  Assuming 
that  the  legacy  vests  in  the  United  States  at  the  mo- 

•»  Estate  of  Sherman,  153  N.  Y.  1,  46  N.  E.  1032;  Estate  of  Whiting, 
150  N.  Y.  27,  56  Am.  St.  Rep.  640,  34  L.  K.  A.  232,  44  N.  E.  715. 

•«  Estate  of  Schermerhorn,  50  Misc.  Rep.  233,  100  N.  Y.  Supp.  480. 
7 


98  INHERITANCE  TAXATION. 

ment  of  the  testator's  death,  yet  in  contemplation  of 
law  the  tax  is  fixed  on  the  succession  at  the  same  in- 
stant of  time.  The  tax  is  not  imposed  on  the  property 
of  the  United  States;  the  property  which  vests  in  it 
is  the  net  amount  of  the  legacy  after  the  inheritance 
tax  is  paid.  "The  act  in  question,"  to  adopt  the  lan- 
guage of  the  supreme  court  of  the  United  States,  "is 
not  open  to  the  objection  that  it  is  an  attempt  to  tax 
the  property  of  the  United  States,  since  the  tax  is 
imposed  upon  the  legacy  before  it  reaches  the  hands 
of  the  government.  The  legacy  becomes  the  property 
of  the  United  States  only  after  it  has  suffered  a 
diminution  to  the  amount  of  the  tax,  and  it  is  only 
upon  this  condition  that  the  legislature  assents  to  a 

bequest  of   it What   the   corporations   are   to 

which  the  exemption  was  intended  to  apply  are  indi- 
cated by  the  tax  laws  of  New  York,  and  are  confined 
to  those  of  a  religious,  educational,  charitable,  or  re- 
formatory purpose.  We  think  it  was  not  intended  to 
apply  it  to  a  purely  political  or  governmental  cor- 
poration like  the  United  States. ' ' 91 

§  68.  Membership  in  Stock  Exchange. — It  has  been 
authoritatively  determined,  both  by  state  and  federal 
courts,  that  a  seat  or  membership  in  a  stock  exchange 
is,  in  a  sense,  property.92  But  there  has  been  con- 
siderable uncertainty  as  to  its  taxability  as  property,93 
and  also  some  doubt  as  to  whether  it  is  subject  to 
the  inheritance  tax.  The  question  has  arisen  a  num- 

»i  United  States  v.  Perkins,  163  U.  S.  625,  41  L.  Ed.  287,  16  Sup.  Ct. 
Eep.  1073,  affirming  In  re  Merriam's  Estate,  141  N.  Y.  479,  36  N.  E. 
505. 

»2  Nashua  Sav.  Bank  v.  Abbott,  181  Mass.  531,  92  Am.  St.  Rep.  430, 
63  N.  E.  1058;  Powell  v.  Waldron,  89  N.  Y.  328,  42  Am.  Eep.  301; 
Page  v.  Edmunds,  187  U.  S.  596,  47  L.  Ed.  318,  23  Sup.  Ct.  Eep.  200. 

»3  San  Francisco  v.  Anderson,  103  Gal.  69,  42  Am.  St.  Eep.  98,  36 
Pac.  1034;  People  v.  Feitner,  167  N.  Y.  1,  82  Am.  St.  Eep.  698,  60  N.  E. 
265. 


PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX.       99 

ber  of  times  in  New  York.  In  the  first  case  it  was 
adjudged  that  a  seat  or  membership  in  the  New  York 
Stock  Exchange  was  a  privilege  of  very  substantial 
value,  and  subject  to  taxation  under  the  transfer  tax 
law.94  In  the  second  case  it  was  determined  that  such 
a  seat  or  membership,  held  by  a  nonresident,  is  capital 
invested  in  business  in  the  state,  and  therefore  is 
property;  and  that  it  is  taxable  under  the  law  in  rela- 
tion to  taxable  transfers.95 

In  a  subsequent  case  it  was  decided  that  a  stock 
exchange  membership  is  not  subject  to  the  transfer 

In  the  last  case  cited  it  is  affirmed  that  a  seat  in  the  New  York  Stock 
Exchange,  while  property  in  a  certain  sense,  is  not  such  personal  prop- 
erty as  is  taxable  under  the  statutes  of  New  York  if  owned  by  a  resi- 
dent, and  is  not  taxable  when  owned  by  a  nonresident,  under  a  statute 
providing  that  the  personal  property  of  nonresidents  is  taxed  "to  the 
same  extent"  as  if  owned  by  a  resident. 

94  Matter  of  Curtis,  31  Misc.  Rep.  83,  64  N.  Y.  Supp.  574. 

»5  Matter  of  Glendinning,  68  App.  Div.  125,  74  N.  Y.  Supp.  190, 
affirmed  in  171  N.  Y.  684,  64  N.  E.  1121.  "The  single  question,"  to 
quote  from  the  supreme  court  in  this  case,  "to  be  determined  upon  this 
appeal  is  whether  a  seat  or  membership  in  the  New  York  Stock  Exchange 
of  a  nonresident  of  this  state  is  taxable  under  the  law  in  relation  to 
taxable  transfers.  This  depends  entirely  upon  whether  such  a  seat 
is  to  be  considered  as  personal  property.  We  do  not  think,  in  view 
of  the  decision  of  the  court  of  appeals  in  People  v.  Feitner,  167  N.  Y.  1, 
82  Am.  St.  Rep.  698,  60  N.  E.  265,  that  this  question  is  open  to  dis- 
cussion. It  is  true  that  the  appellants  seemed  to  rely  upon  this  au- 
thority as  sustaining  their  proposition.  But  an  examination'  of  the 
opinions  delivered  by  the  court  in  that  case  shows  that,  although  such 
a  seat  in  the  New  York  Stock  Exchange  is  not  personal  property  under 
the  restricted  definition  of  the  tax  law,  yet  it  is  undoubtedly  capital 
invested  in  business  in  this  state,  which  has  a  market  value  and  can 
be  bought  and  sold.  If  it  is  capital  invested  in  business  in  this  state, 
it  is  property,  as  it  is  difficult  to  see  how  capital  invested  in  business, 
which  has  a  market  value,  and  can  be  bought  and  sold,  does  not  fall 
within  the  term  'property.'  The  restrictions  under  which  this  property 
is  held  in  no  way  affect  its  character.  They  may  detract  from  or  add 
to  its  value.  As  was  said  by  Justice  Vann  in  the  opinion  in  the  case 
cited,  'the  money  used  by  him  to  buy  his  seat  was  neither  thrown  away 
nor  given  away,  but  was  used  to  pay  for  property  of  great  value,  which 
was  the  main  instrumentality  for  carrying  on  the  business  in  which  he 
was  engaged.' " 


100  INHERITANCE  TAXATION. 

tax  as  "personal  property "  under  the  restricted  defi- 
nition of  those  words  in  the  statutes  of  1896  and 
1901. M  This  case,  however,  was  reversed  by  the  court 
of  appeals,  holding  that  under  a  statute  imposing 
inheritance  taxes,  and  declaring  that  the  words  "es- 
tate or  property"  as  used  therein  include  all  property 
or  interest  therein,  whether  situate  within  or  without 
the  state,  a  seat  in  the  New  York  Stock  Exchange 
of  which  the  owner  dies  seised  is  subject  to  taxation.87 
Proceeds  realized  from  the  gratuity  fund  of  the  New 
York  Produce  Exchange,  payable  only  to  the  bene- 
ficiaries of  a  deceased  member,  do  not  pass  by  virtue 
of  his  will  or  by  any  administration  of  his  estate,  but 
by  his  contract  with  the  exchange,  and  therefore  are 
not  subject  to  the  transfer  tax." 

§  69.  Goodwill  of  Business.— The  goodwill  of  a 
business  has  been  thought  not  to  be  "personal  prop- 
erty" under  the  restricted  definition  of  those  words 
in  the  New  York  statute  of  1896,  and  not  real  prop- 
erty upon  any  theory,  and  therefore  not  subject  to 
the  transfer  tax  on  personal  or  real  estate."  This, 
however,  appears  erroneous,  for  clearly  the  goodwill  of 
a  business,  at  least  when  considered  in  connection  with 
the  tangible  property  with  which  it  is  associated,  is  a 
thing  susceptible  of  ownership  and  frequently  an  asset 
of  no  inconsiderable  value.  It  therefore  is  property.100 

Accordingly,  it  has  been  affirmed  that  under  the 
New  York  transfer  tax  law  of  1891,  subjecting  "all 

»«  Estate  of  Hellman,  77  App.  Div.  355,  79  N.  Y.  Supp.  201. 

»T  Estate  of  Hellman,  174  N.  Y.  254,  95  Am.  St.  Rep.  582,  66  N.  E. 
809. 

»s  Estate  of  Fay,  25  Misc.  Rep.  468,  55  N.  Y.  Supp.  749. 

•»  Estate  of  Dun,  39  Misc.  Rep.  616,  80  N.  Y.  Supp.  657. 

i°o  As  to  the  nature  of  goodwill  as  property,  see  George  G.  Fox  &  Co. 
v.  Glynn,  191  Mass.  344,  114  Am.  St.  Rep.  619,  9  L.  R.  A.,  N.  S.,  1096, 
78  N.  E.  89;  Kramer  v.  Old,  119  N.  C.  1,  56  Am.  St.  Rep.  650,  25  S.  E. 
813 ;  and  as  to  whether  it  can  be  subjected  to  a  property  tax,  see  Hart  v. 
Smith,  159  Ind.  182,  95  Am.  St.  Rep.  280,  58  L.  R.  A.  949,  64  N.  E.  661. 


PROPERTY  AND  SUCCESSIONS  SUBJECT   TO  TAX.  101 

property"  which  passes  by  will  or  the  intestate  laws 
to  a  tax,  the  goodwill  of  a  newspaper  conducted  by  a 
joint  stock  association  is  property  which  passes  under 
the  will  of  a  deceased  member,  and  the  value  thereof 
should  be  included  in  determining  the  amount  of  his 
estate  subject  to  the  transfer  tax,101  and  that  the  good- 
will of  the  business  of  a  firm  is  taxable  to  the  estate 
of  the  sole  owner  of  the  firm,  where  his  will  transfers 
the  goodwill,  it  being  '  *  property. ' ' 10Z 

Where  the  business  of  a  deceased  person  is  continued 
by  his  administrator,  the  goodwill  of  the  business  is 
an  asset  subject  to  a  transfer  tax,  under  the  words 
"other  value  in  business";  and  in  determining  the 
value  thereof  the  net  earnings  of  a  single  year  should 
be  multiplied  by  a 'certain  number  of  years,  the  num- 
ber depending  upon  the  nature  of  the  business.103 

The  value  of  the  goodwill  of  a  business  in  which  the 
decedent  was  a  partner  is  to  be  determined,  for  pur- 
poses of  the  inheritance  tax,  as  of  the  date  of  his 
death;  and,  if  there  was  an  agreement  between  the 
decedent  and  his  copartner  whereby  the  latter  was  to 
pay  a  stipulated  amount  for  the  decedent's  interest  in 
the  gpodwill  at  his  death,  such  agreement  must  be 
considered  in  ascertaining  the  value  of  his  interest.10* 

§  70.  Interest  in  Partnership  Property. — Where  a 
partner  has  loaned  money  to  the  firm  and  received 
thereon  such  profits  as  are  earned  by  the  concern,  this 
is  regarded  as  invested  capital  and  is  subject  to  the 
transfer  tax  on  his  death;  and  if  he  has  permitted  the 
profits  to  remain  on  deposit  with  the  firm,  they  are 
likewise  deemed  taxable  assets  of  his  estate.105  If  a 

101  Estate  of  Jones,  69  App.  Div.  237,  74  N.  Y.  Supp.  702. 

102  Estate  of  Dun,  40  Misc.  Rep.  509,  82  N.  Y.  Supp.  802. 

ios  Estate  of  Keahon,  60  Misc.  Rep.  508,  113  N.  Y.  Supp.  926. 

104  Estate  of  Vevanti,  138  App.  Div.  281,  122  N.  Y.  Supp.  954, 

105  Estate  of  Probst,  40  Misc.  Rep.  431,  82  N.  Y.  Supp.  396. 


102  INHERITANCE  TAXATION. 

nonresident  at  the  time  of  his  death  is  a  member  of  a 
partnership  having  assets  in  New  York,  his  interest 
therein  is  considered  personal  property,  rather  than 
a  mere  chose  in  action,  and  is  subject  to  the  transfer 
tax  of  that  state.106 

Where  it  is  admitted  that  all  the  property  belonging 
to  a  commercial  partnership  has  been  regularly  as- 
sessed, and  all  taxes  thereon  duly  paid,  the  interest 
of  a  partner  in  the  same  property  is  not  a  distinct 
and  separate  taxable  entity,  within  the  Louisiana  con- 
stitutional provision  that  the  inheritance  tax  shall  not 
be  enforced  against  property  which  has  borne  its  just 
proportion  of  taxes.107 

The  interest  of  a  nonresident  member  of  a  limited 
partnership  association  is  liable  to  the  inheritance 
tax,  where  real  and  personal  property  of  the  associa- 
tion is  situated  within  the  state.107* 

§  71.  Bequest  in  Discharge  of  Debt  or  Obligation. 
It  may  seem  that  a  bequest  in  satisfaction  of  a  debt 
is  not  a  legacy  within  the  meaning  of  the  act  taxing 
legacies,  since  a  legacy  implies  only  bounty  or  benev- 
olence.108 Nevertheless  it  has  been  declared  tljat  all 
transfers  made  by  will  are  subject  to  the  transfer  tax, 
irrespective  of  whether  they  are  made  as  a  gratuity 
or  in  discharge  of  some  debt  or  other  obligation.109 
Said  the  New  York  court  of  appeals  in  the  Gould 

i°«  Estate  of  King,  30  Misc.  Eep.  575,  63  N.  Y.  Supp.  1100,  order 
affirmed,  56  App.  Div.  617,  67  N.  Y.  Supp.  766. 

107  Succession  of  Stauffer,  119  La.  66,  43  South.  928. 
"fa  Estate  of  Small,  151  Pa.  1,  25  Atl.  23. 

108  Estate  of  Eogers,  2  Con.  Sur.  198,  10  N.  Y.  Supp.  22.     According 
to  Matter  of  Underbill,  2  Con.  Sur.  262,  20  N.  Y.  Supp.  134,  when  a 
bequest  is  made  to  a  creditor  on  condition  that  he  accept  it  in  full  satis- 
faction of  all  unsettled  accounts  and  claims  against  the  testator,  it  is  not 
subject  to  the  inheritance  tax  if  the  accounts  exceed  the  sum  bequeathed. 

109  Estate  of  Eogers,  71  App.  Div.  461,  75  N.  Y.  Supp.  835,  affirmed, 
172  N.  Y.  617,  64  N.  E.  1125. 


PROPERTY  AND  SUCCESSIONS  SUBJECT  TO  TAX.      103 

case,110  where  a  son  of  the  testator  accepted  payment 
for  his  services  under  a  provision  of  the  will:  "It 
matters  not  what  the  motive  of  a  transfer  by  will  may 
be,  whether  to  pay  a  debt,  discharge  some  moral  obli- 
gation, or  to  benefit  a  relative  for  whom  the  testator 
entertained  a  strong  affection,  if  the  devise  or  bequest 
be  accepted  by  the  beneficiary,  the  transfer  is  made 
by  will  and  the  state  makes  a  tax  to  impinge  upon 
that  performance." 

Accordingly,  it  has  been  decided  that  a  bequest  to 
a  physician  "in  view  and  in  consideration  of  his  un- 
remitting care  and  attention  to  me  during  my  years 
of  sickness  without  asking  any  reward  for  services 
rendered, ' '  is  subject  to  the  transfer  tax ; 1U  and  that 
a  bequest  to  a  priest  or  his  successors  to  be  used  in 
saying  low  masses  for  the  repose  of  the  soul  of  the 
testatrix  and  three  others,  is  not  exempt  from  the 
transfer  tax  as  funeral  expenses.112 

Referring  to  the  Gould  case  above,  where  the  testa- 
tor's son  consented  to  accept  payment  for  his  services 
under  a  provision  in  the  will,  the  New  York  court,  in 
Estate  of  Daniell,113  said :  "It  is  only  where  the  devise 
or  bequest  is  accepted  by  the  beneficiary  that  the 
transfer  is  made  by  the  will,  and  the  statute  in  ques- 
tion makes  a  tax  to  impinge  upon  that  performance." 
This  is  in  recognition  of  the  well-established  rule  that 
a  legatee  may  renounce  his  legacy,  and  that  when  he 
does  so  there  is  no  transfer  to  him,  so  far  as  concerns 
that  particular  testamentary  gift,  to  which  the  inherit- 
ance tax  will  attach.114 

no  Estate  of  Gould,  156  N.  Y.  423,  51  N.  E.  287. 

in  Estate  of  Doty,  7  Misc.  Eep.  193,  27  N.  Y.  Supp.  653. 

112  Estate  of  McAvoy,  112  App.  Div.  377,  98  N.  Y.  Supp.  437. 

us  Estate  of  Daniell,  40  Misc.  Rep.  329,  81  N.  Y.  Supp.  1033. 

11*  See  "Effect  of  Eenunciation  of  Legacy,"  post,  sec.  162. 


104  INHERITANCE  TAXATION. 

A  bequest  of  a  promissory  note  to  its  maker  has 
been  held  a  transfer  taxable  at  its  fair  market  value.116 
And  when  a  bequest  of  the  residue  of  the  estate  of 
the  testator  includes  a  note  by  the  legatee,  the  amount 
of  the  note  is  subject  to  the  legacy  tax.116  Where  the 
testator  directed  his  executor  to  withdraw  one-half 
of  the  claims  he  had  presented  to  his  brother's  execu- 
tor, and  forgave  that  half,  it  was  held  that  this  did 
not  relieve  any  part  of  the  whole  sum  from  taxation 
(it  being  a  bequest  of  that  half  to  the  estate),  and 
have  the  effect  of  making  the  tax  on  that  half  assess- 
able to  the  executrix  in  her  official  capacity  and  not 
as  an  individual.1" 

In  Pennsylvania  a  gift  by  a  testator  to  his  creditor, 
in  satisfaction  of  a  debt,  of  the  precise  sum  due,  is 
said  to  fall  neither  within  the  letter  nor  the  spirit 
of  the  collateral  inheritance  tax; 118  and  a  debt  released 
by  a  will,  which  was  previously  barred  by  the  statute 
of  limitation,  passes  nothing,  and  the  amount  of  the 
debt  is  not  liable  to  be  assessed  with  a  collateral  in- 
heritance tax.119  ' 

§  72.  Advancements  and  ordinary  gifts  inter  vivos 
not  in  contemplation  of  death  are  not  within  the  pro- 
visions of  the  inheritance  tax  statutes.120  However,  it 
has  been  thought  that  sums  loaned  and  advanced  by 
the  testator  to  his  sons  are  not  advancements  within 
this  rule,  a  distinction  being  made  between  the  words 
4  *  advance ' '  and  *  *  advancement. ' ' 121  But  a  deed  of 

««  Morgan  v.  Warner,  45  App.  Dir.  424,  60  N.  Y.  Supp.  693,  affirmed, 
162  N.  Y.  612,  57  N.  E.  1118. 

"«  Matter  of  Tuigg,  15  N.  Y.  Supp.  548. 

i"  Estate  of  Wood,  40  Misc.  Rep.  155,  81  N.  Y.  Supp.  511. 

i"  Forster  y.  Gillam,  13  Pa.  340. 

"»  Stinger  v.  Commonwealth,  26  Pa.  429. 

120  Matter  of  Edgerton,  35  App.  Div.  125,  54  N.  Y.  Supp.  700,  af- 
firmed, 158  N.  Y.  671,  52  N.  E.  1124;  Matter  of  Spaulding,  49  App. 
Div.  541,  63  N.  Y.  Supp.  694. 

«i  Matter  of  Bartlett,  4  Misc.  Eep.  380,  23  N.  Y.  Supp.  990. 


PROPERTY  AND  SUCCESSIONS  SUBJECT   TO   TAX.  105 

gift  to  a  son,  made  as  an  advancement  and  chargeable 
as  such  against  his  ultimate  share  of  the  estate  of 
the  father  under  a  will  existing  at  the  time  of  the  deed, 
was  held  a  ' '  succession, ' '  under  the  war  revenue  act 
of  June  30,  1864,  as  a  conveyance  without  "valuable 
and  adequate  consideration,"  and  chargeable  with  a 
tax  of  one  per  cent.122 

122  United  States  v.  Banks,  17  Fed.  322. 


106  INHERITANCE  TAXATION. 

CHAPTER  V. 

POWERS  OF  APPOINTMENT. 

§  78.  Creation  of  Power  as  Effecting  Taxable  Transfer. 

§  79.  Exercise  of  Power  as  Effecting  a  Taxable  Transfer. 

§  80.  Constitutionality  of  Tar  on  Exercise  of  Power. 

§  81.  Acts  Constituting  an  Exercise  of  Power. 

§  82.  Change  of  Realty  to  Personalty  by  Equitable  Conversion. 

§  83.  Nonresidents — Situs  of  Property. 

§  84.  Probate  Court  Having  Jurisdiction. 

§  85.  Bate  of  Taxation — Relationship  of  Parties. 

§  86.  Time  for  Assessment  of  Tax. 

§  78.  Creation  of  Power  as  Effecting  Taxable 
Transfer. — Inheritance  taxation,  in  its  application  to 
powers  of  appointment,  presents  questions  that  do  not 
lend  themselves  to  an  easy  solution;  and  the  first  of 
these  questions  is,  What  act  constitutes  the  taxable 
transfer  or  succession,  the  creation  of  the  power  by 
the  donor,  or  the  execution  of  the  power  by  the  donee  ? 
The  idea  has  gained  recognition  in  some  jurisdictions 
that  the  transfer  subject  to  the  tax  takes  place  upon 
the  death  of  the  creator  of  the  power  rather  than  at 
the  time  when  the  power  is  exercised  and  becomes 
operative  by  the  death  of  the  donee  of  the  power; 
that  the  source  of  the  title  is  the  instrument  creating 
the  power,  into  which  the  names  of  the  appointees 
must  be  read,  and  their  right  of  succession  vests,  not 
when  the  power  is  executed  and  becomes  operative  by 
the  death  of  the  donee  of  the  power,  but  at  the  time 
when  the  instrument  which  created  it  went  into  effect. 
Hence  if  a  will  creating  a  power  of  appointment  be- 
came effective  through  the  death  of  the  testator  prior 
.  to  the  enactment  of  a  statute  imposing  an  inheritance 
tax,  bequests  made  in  the  exercise  of  the  power  after 
the  enactment  of  such  statute  are  not  taxable ; x  the 

i  Matter  of  Stewart,  131  N.  Y.  274,  14  L.  R.  A.  836,  30  N.  E.  184; 
Will  of  Harbeck,  161  N.  Y.  211,  55  N.  E.  850;  Commonwealth  v.  Duffield, 


POWERS  OP  APPOINTMENT.  107 

donor  of  the  power  of  appointment,  rather  than  the 
donee,  is  regarded  as  the  decedent  whose  estate  is 
subject  to  taxation.2  Conversely  it  would  follow  that 
if  there  was  a  statute  imposing  a  tax  when  the  will 
creating  the  power  took  effect,  a  modification  of  the 
statute  prior  to  the  exercise  of  the  power  by  the  donee 
would  not  relieve  his  legatees  from  liability  for  the 
tax,  as  their  interest  will  be  considered  as  having 
been  acquired  as  of  the  time  the  instrument  creating 
the  power  went  into  effect.2* 

§  79.  Exercise  of  Power  as  Effecting  a  Taxable 
Transfer. — After  this  interpretation  of  the  law  by  the 
courts  of  New  York  and  Massachusetts  the  legislatures 
of  these  states  amended  the  statutes,  and  in  unmis- 
takable language  declared  that  the  act  constituting 
the  transfer  or  succession  is,  for  purposes  of  inherit- 
ance taxation,  the  execution  of  the  power  of  appoint- 
ment by  the  donee.  Under  the  amended  statutes  the 
property  is  not  taxed,  nor  the  original  transfer,  but 
the  particular  transfer  through  the  exercise  of  the 
power.3  The  New  York  statute,  as  amended,  reads: 

12  Pa.  277;  Commonwealth  v.  Williams,  13  Pa.  29;  Fidelity  Trust  Co.  v. 
McClain,  113  Fed.  152,  affirmed,  122  Fed.  1020,  57  C.  C.  A.  679. 

2  Emmons  v.  Shaw,  171  Mass.  410,  50  N.  E.  1033.  In  this  case  a 
father  devised  property  to  his  son  for  life,  subject  to  his  disposition  by 
will,  but,  in  the  event  that  he  died  intestate,  with  further  limitations  as 
to  the  fee,  and  the  son  disposed  of  the  property  by  will  under  the  power ; 
and  an  inheritance  tax  law  was  adopted  after  the  death  of  the  father 
but  before  the  death  of  the  son.  The  court  declined  to  enforce  the  tax. 
This  ease  is  cited  approvingly  in  Winn  v.  Schenck,  33  Ky.  Law  Rep. 
615,  110  S.  W.  827. 

2a  Hoyt  v.  Hancock,  65  N.  J.  L.  688,  55  Atl.  1004. 

a  Minot  v.  Stevens,  207  Mass.  588,  33  L.  B.  A.,  N.  S.,  236,  93  N.  E. 
973 ;  Matter  of  Dows,  167  N.  Y.  227,  88  Am.  St.  Rep.  509,  52  L.  R.  A. 
433,  60  N.  E.  439;  Estate  of  Delano,  176  N.  Y.  486,  64  L.  R.  A.  279, 
68  N.  E.  871 ;  Estate  of  Fields,  36  Misc.  Rep.  279,  73  N.  Y.  Supp.  512. 

The  fact  that  the  property,  as  to  which  the  power  is  exercised,  is  in- 
vested in  corporations  liable  to  taxation  on  their  own  capital  and  in 


108  INHERITANCE  TAXATION. 

"Whenever  any  person  or  corporation  shall  exercise 
a  power  of  appointment  derived  from  any  disposition 
of  property  made  either  before  or  after  the  passage 
of  this  act,  such  appointment  when  made  shall  be 
deemed  a  transfer  taxable  under  the  provisions  of  this 
act  in  the  same  manner  as  though  the  property  to 
which  such  appointment  relates  belonged  absolutely 
to  the  donee  of  such  power  and  had  been  bequeathed 
or  devised  by  such  donee  by  will;  and  whenever  any 
person  or  corporation  possessing  such  power  of  ap- 
pointment so  derived  shall  omit  or  fail  to  exercise  the 
same  within  the  time  provided  therefor,  in  whole  or 
in  part,  a  transfer  taxable  under  the  provisions  of  this 
act  shall  be  deemed  to  take  place  to  the  extent  of 
such  omissions  or  failure,  in  the  same  manner  as 
though  the  persons  or  corporations  thereby  becoming 
entitled  to  the  possession  or  enjoyment  of  the  prop- 
erty to  which  such  power  related  had  succeeded  thereto 
by  a  will  of  the  donee  of  the  power  failing  to  exer- 
cise such  power,  taking  effect  at  the  time  of  such  omis- 
sion or  failure. ' '  *  The  Massachusetts  statute  is  sub- 
stantially the  same  as  the  New  York.' 

Clearly,  this  statute  imposes  the  tax  upon  the  trans- 
fer effected  by  the  exercise  of  the  power,  not  upon  the 
property,  nor  yet  upon  the  original  transfer.  The 
effect  of  conferring  a  general  power  of  appointment  is 
to  invest  its  donee  with  a  power  of  disposition  as 
broad  as  though  he  were  disposing  of  his  own  prop- 
erty; in  its  exercise  he,  in  fact,  makes  a  gift  to  persons 
of  his  own  selection.5*  It  is  therefore  immaterial 

bonds  exempt  from  taxation  does  not  relieve  the  succession  resulting 
from  the  exercise  of  the  power  from  the  inheritance  tax:  Matter  of 
Dows,  167  N.  Y.  227,  88  Am.  St.  Rep.  509,  52  L.  R.  A.  433,  60  N.  E.  439. 

«  N.  Y.  Laws  1897,  c.   284. 

•  Mass.  Stats.  1909,  c.  527,  sec.  8. 

6*  Matter  of  Dows,  167  N.  Y.  227,  88  Am.  St.  Rep.  509,  52  Ix  R,  A. 
433,  60  N.  E.  439;  Isham  v.  New  York  Assn.  for  Poor,  177  N.  Y.  E18, 
69  N.  E.  367. 


POWERS   OF   APPOINTMENT.  109 

whether  or  not  there  was  a  succession  tax  in  force 
when  the  original  disposition  of  the  property  was 
made  and  the  power  created;  and  it  is  unimportant 
how  the  power  was  created,  whether  by  will  or  by 
deed.  Accordingly,  it  has  been  decided  that  if  a  tes- 
tator devises  property  in  trust  for  a  life  in  being,  and 
provides  that  at  the  termination  of  that  life  it  shall 
vest  in  the  surviving  children  of  that  person  and  such 
of  the  issue  of  his  deceased  children  as  he  may  desig- 
nate and  appoint  by  his  will,  the  property  so  passing 
by  such  appointment  is  subject  to  the  inheritance 
tax,  though  at  the  time  of  the  making  of  the  will 
there  was  no  such  tax  in  existence  as  against  the  de- 
scendants of  the  testator.6  It  has  also  been  decided 
that  an  inheritance  tax  is  properly  imposed  upon  the 
exercise,  by  a  last  will  and  testament,  of  a  power  of 
appointment  derived  from  a  deed  executed  before  the 
enactment  of  any  statute  imposing  a  tax  upon  the  suc- 
cession to  the  property  of  a  decedent.7 

«  Matter  of  Dows,  167  N.  Y.  227,  88  Am.  St.  Bep.  509,  52  L.  E.  A.  433, 
60  N.  E.  439. 

T  Estate  of  Delano,  176  N.  Y.  486,  64  L.  B.  A.  279,  68  N.  E.  871. 
Said  the  court  in  this  case:  "As  the  tax  is  imposed  upon  the  exercise 
of  the  power,  it  is  unimportant  how  the  power  was  created.  The  exist- 
ence of  the  power  is  the  important  fact,  for  what  may  be  done  under 
it  is  not  affected  by  its  origin.  If  created  by  deed,  its  efficiency  is  the 
same  as  if  it  had  been  created  in  the  same  form  by  will.  No  more  and 
no  less  could  be  done  by  virtue  of  it  in  the  one  case  than  in  the  other. 
Its  effective  agency  to  produce  the  result  intended  is  neither  strengthened 
nor  weakened  by  the  nature  of  the  instrument  used  by.  the  donor  of  the 
power  to  create  it.  The  power,  however  or  whenever  created,  authorized 
the  donee  by  her  will  to  devest  certain  defeasible  estates  and  to  vest 
them  absolutely  in  one  person.  If  this  authority  had  been  conferred 
by  will,  instead  of  by  deed,  the  right  to  act  would  have  been  precisely 
the  same  and  the  power  would  have  neither  gained  nor  lost  its  force. 
The  statute  applies  to  all  powers  alike,  without  distinction  on  account 
of  the  method  of  creation  or  the  date  of  creation,  and  provides  that  the 
exercise  of"  the  power  shall  be  deemed  a  taxable  transfer  of  the  prop- 
erty affected,  the  same  as  if  it  had  belonged  absolutely  to  the  donee 
of  the  power  and  had  been  bequeathed  or  devised  by  such  donee.  As 
we  said  through  Judge  Cullen  in  the  Dows  case,  167  N.  Y.  227,  88  Am. 


110  INHERITANCE  TAXATION. 

§  80.  Constitutionality  of  Tax  on  Exercise  of 
Power. — The  New  York  statute,  as  thus  applied  to 
powers  of  appointment  created  before  and  exercised 
after  its  enactment,  is  constitutional.  It  does  not 
impair  the  obligation  of  contracts,  does  not  take  prop- 
erty without  due  process  of  law,  nor  in  any  way  offend 
constitutional  principles.  It  has  been  upheld  both  by 
the  state  court  of  last  resort  and  by  the  supreme  court 
of  the  United  States  in  cases  where  the  power  was 
actually  exercised  by  the  donee.8  But  the  second 
part  of  the  statute,8  it  will  be  noted,  provides  that  if 
the  donee  fails  or  omits  to  exercise  the  power  within 
the  time  provided  therefor,  a  "  transfer  taxable  under 
the  provisions  of  this  act  shall  be  deemed  to  take 
place  to  the  extent  of  such  omissions  or  failure,  in 

St.  Rep.  509,  52  L.  R.  A.  433,  60  NT.  E.  439:  'Whatever  be  the  technical 
source  of  title  of  a  grantee  under  a  power  of  appointment,  it  cannot 
be  denied  that,  in  reality  and  substance,  it  is  the  execution  of  the  power 
that  gives  to  the  grantee  the  property  passing  under  it.'  ....  No  tax 
is  laid  on  the  power,  or  on  the  property,  or  on  the  original  disposition 
by  deed,  but  simply  upon  the  exercise  of  the  power  by  will,  as  an  effec- 
tive transfer  for  the  purposes  of  the  act.  If  the  power  had  been  exer- 
cised by  deed,  a  different  question  would  have  arisen,  but  it  was  exercised 
by  will,  and  owing  to  the  full  and  complete  control  by  the  legislature  of 
the  making,  the  form  and  the  substance  of  wills,  it  can  impose  a  charge 
or  tax  for  doing  anything  by  will.  It  is  quite  immaterial  that  there 
was  no  statute  imposing  a  succession  tax  of  any  kind  in  force  when  the 
original  disposition  of  the  property  was  made  and  the  power  was  created. 
That  transfer  i«  not  taxed,  and  the  statute  makes  no  effort  to  reach  it. 
It  is  the  practical  transfer  through  the  exercise  of  the  power  by  will 
that  is  taxed  and  nothing  else.  The  right  of  the  legislature  to  impose 
a  tax  on  the  privilege  of  exercising  a  power  by  will  is  not  affected  by  the 
fact  that  no  such  tax  was  imposed  when  the  power  was  created":  Estate 
of  Delano,  176  N.  Y.  486,  68  N.  E.  871,  64  L.  R.  A.  279.  This  lan- 
guage of  the  New  York  court  of  appeals  is  quoted  with  approval  in 
Chanler  v.  Kelsey,  205  U.  S.  466,  51  L.  Ed.  882,  27  Sup.  Ct.  Rep.  550. 

8  Matter  of  Vanderbilt,  50  App.  Div.  246,  63  N.  Y.  Supp.  1079, 
affirmed,  163  N.  Y.  597,  57  N.  E.  1127;  Estate  of  Delano,  176  N.  Y. 
486,  64  L.  R.  A.  279,  68  N.  E.  871;  Orr  v.  Gilman,  183  U.  S.  278,  46 
L.  Ed.  196,  22  Sup.  Ct.  Rep.  213;  Chanler  v.  Kelsey,  205  U.  S.  466, 
51  L.  Ed.  882,  27  Sup.  Ct.  Rep.  550. 

•  The  statute  is  set  forth  in  the  preceding  section. 


POWERS  OP  APPOINTMENT.  Ill 

the  same  manner  as  though  the  persons  or  corpora- 
tions thereby  becoming  entitled  to  the  possession  or 
enjoyment  of  the  property  to  which  such  power  related 
had  succeeded  thereto  by  a  will  of  the  donee  of  the 
power  failing  to  exercise  such  power,  taking  effect  at 
the  time  of  such  omission  or  failure."  This  provision 
the  courts  of  New  York  seem  disinclined  to  apply  to 
cases  where  the  power  was  created  before  the  passage 
of  the  statute,  on  the  theory  that  to  do  so  would 
diminish  the  value  of  vested  estates,  impair  the  obli- 
gation of  contracts,  and  take  private  property  for 
public  use  without  compensation.  But  this  conclusion 
was  reached  by  a  divided  court.10 

The  Massachusetts  court,  interpreting  a  similar  stat- 
ute, has  declined  to  follow  the  theory  prevailing  in 
New  York.  The  statute,  to  quote  from  Chief  Justice 
Knowlton,11  "  declares  in  substance  that  the  exercise 
of  the  power  shall  be  considered  as  giving  the  succes- 
sion to  the  appointees,  and  -that  the  refusal  or  omis- 
sion to  exercise  the  power  shall  be  considered  as  giving 
the  succession  to  the  persons  who  are  to  take  in 
default  of  the  exercise  of  it.  The  statute  treats  the 
result  as  depending  upon  the  conduct  of  the  donee, 
who  may  appoint  or  refrain  from  appointing.  If  he 
appoints,  the  succession  under  the  statute  is  to  be 
treated  as  determined  by  him,  and  the  right  thus  ac- 
quired by  the  appointee  is  treated  as  taxable,  because 
received  as  a  benefit  under  our  law.  Can  there  be  any 
doubt  of  the  power  of  the  legislature  so  to  treat  the 
coming  of  the  appointee  into  the  succession?  It 
seems  not.  It  is  but  a  short  step  farther  to  apply  the 
second  part  of  the  statute,  which  refers  to  coming  into 
succession  through  the  conduct  of  the  donee  in  refus- 

10  Matter  of  Lansing,  182  N.  Y.  238,  74  N.  E.  882;  Matter  of  Chap- 
man, 133  App.  Div.  337,  117  N.  Y.  Supp.  679,  affirmed,  196  N.  Y.  561, 
80  N.  E.   1157. 

11  Minot  v.  Stevens,  207  Mass.  588,  93  N.  E.  973. 


112  INHERITANCE  TAXATION. 

ing  or  omitting  to  make  an  appointment  that  might 
carry  the  succession  elsewhere.  While  he  has  the 
power  of  appointment,  he  is  in  control  of  the  succes- 
sion. He  may  allow  it  to  go  to  the  person  named  in 
the  will  or  deed,  or  he  may  transmit  it  elsewhere. 
By  exercising  the  power  he  may  even  give  the  ap- 
pointee's creditors  the  benefit  of  it  after  his  death. 
When  property  is  held  subject  to  such  possibilities  of 
disposition,  is  it  usurpation  or  an  unlawful  interfer- 
ence with  vested  rights  for  the  legislature  to  say  that 
the  succession  in  possession  and  enjoyment  is  not  yet 
determined,  that  it  belongs  to  no  one  until  it  is  deter- 
mined, that  the  determination  of  it  depends  upon  the 
will  and  conduct  of  the  donee  of  the  power,  and  that 
when  it  is  determined  by  his  conduct,  either  by  action 
or  refraining  from  action,  it  shall  be  subject  to  a  tax? 
We  think  it  is  in  the  power  of  the  legislature  to  say, 
in  reference  to  succession  in  possession  after  the  death 
of  the  person  whose  decease  is  awaited,  that  property 
so  held  is  not  vested  in  anybody,  and  that  when  it 
vests  in  possession,  through  a  proper  disposition  of  it 
which  is  dependent  upon  the  will  and  conduct  of  the 
donee,  a  succession  tax  shall  be  imposed.  We  think 
that  Chanler  v.  Kelsey12  looks  in  this  direction,  al- 
though it  does  not  discuss  this  particular  subject. 
The  decision  of  Moffitt  v.  Kelly  "  is  almost,  if  not,  de- 
cisive of  the  question." 

§  81.    Acts  Constituting  an  Exercise  of  Power. — 

Some  of  the  statutes  provide,  in  substance,  that  the 
refusal  or  omission  to  exercise  a  power  of  appoint- 
ment shall  be  considered  as  giving  the  succession  to 
the  persons  who  are  to  take  in  default  of  the  exercise 

i*  Chanler  v.  Kelsey,  205  TJ.  S.  466,  51  L.  Ed.  882,  27  Sup.  Ct.  Eep. 
550. 

is  Moffitt  v.  Kelly,  218  U.  S.  400,  54  L.  Ed.  1086,  31  Sup.  Ct  Eep. 
79. 


POWERS  OP  APPOINTMENT.  113 

of  it.  As  has  already  been  seen,14  the  Massachusetts 
courts  enforce  this  statutory  provision  and  impose  the 
tax  therein  provided,  but  the  New  York  courts  do  not 
seem  so  disposed.  In  the  latter  state,  if  the  attempt 
to  exercise  the  power  neither  increases  nor  diminishes 
the  estate  of  the  beneficiary  as  fixed  by  the  original 
instrument  creating  the  power,  a  taxable  transfer  is 
not  effected.15  But  where  the  power  is  so  exercised 
as  to  work  a  modification  of  the  terms  of  the  instru- 
ment creating  the  power  and  to  create  different  estates 
or  interests  or  provide  a  different  procedure  for  pay- 
ing over  the  remainder,  making  it  necessary  to  resort 
to  the  will  by  which  the  power  was  exercised,  before 
title  can  be  established  to  the  property,  the  transfer 
is  by  virtue  of  the  power  of  appointment  and  is  sub- 
ject to  the  tax.1' 

14  See  sec.  80,  ante. 

i«  Estate  of  Lansing,  182  N.  Y.  238,  74  N.  E.  882;  Estate  of  Ripley, 
122  App.  Div.  419,  106  N.  Y.  Supp.  844;  Estate  of  Spencer,  119  App. 
Div.  883,  107  N.  Y.  Supp.  543;  Estate  of  Mather,  90  App.  Div.  382,  85 
N.  Y.  Supp.  657,  affirmed,  179  N.  Y.  526,  71  N.  E.  1134.  In  Winn  v. 
Schenck,  33  Ky.  Law  Eep.  615,  110.  S.  W.  827,  the  Kentucky  court, 
citing  approvingly  the  above  Lansing  case,  says  of  it':  The  New  York 
court  "held  that  where  property  was  devised  by  a  man  to  his  daughter 
for  life,  and  after  her  to  her  heirs  at  law,  with  the  power  to  devise 
the  remainder  by  will  in  such  manner  and  under  such  limitations  as  she 
might  desire,  and  the  daughter,  in  the  exercise  of  this  power,  devised  the 
property  to  her  own  daughter  absolutely,  the  daughter's  will  operated 
to  transfer  nothing  that  was  not  given  to  the  heir  at  law  by  the  grand- 
father's will,  and,  as  at  the  time  the  will  of  the  grandfather  took  effect 
there  was  no  law  imposing  a  transfer  tax,  the  property  was  not  subject 
to  said  tax." 

i«  Estate  of  Cooksey,  182  N.  Y.  92,  74  N.  E.  880;  Estate  of  Rogers, 
71  App.  Div.  461,  75  N.  Y.  Supp.  835,  affirmed,  172  N.  Y.  617,  64  N.  E. 
1125;  Estate  of  Warren,  62  Misc.  Rep.  444,  116  N.  Y.  Supp.  1034. 
The  following  is  an  extract  from  this  last  case: 

"In  Matter  of  Vanderbilt,  50  App.  Div.  246,  63  N.  Y.  Supp.  1079, 
affirmed,  163  N.  Y.  597,  57  N.  E.  1127,  the  testator  directed  that  upon 
the  death  of  Cornelius,  the  fund  should  be  paid  to  his  lawful  issue  in 
such  shares  or  proportions  as  Cornelius  might  by  his  last  will  have  di- 
rected or  appointed.  Cornelius  by  will  made  an  unequal  division  among 


114  INHERITANCE  TAXATION. 

Where  a  will  gives  the  devisee  an  absolute  right  to 
dispose  of  the  property  at  pleasure,  he  takes  the  fee, 
and  a  devise  over  is  inoperative."  Hence  when  such 
a  will  is  made  by  a  man  to  his  wife,  and  she  takes  a 
fee,  the  heirs,  on  her  death,  take  from  her,  and  are 
subject  to  an  inheritance  tax  imposed  by  a  statute 
enacted  before  her  death  but  after  his.18  In  New  York 
a  devise  by  a  man  of  all  his  real  estate  to  his  wife 
during  life  "to  be  retained  or  disposed  of  as  she  may 
think  proper,"  no  remainder  or  trust  being  limited 

his  children,  and  a  tax  was  upheld.  In,  the  Delano  case,  176  N.  Y. 
486,  64  L.  R.  A.  279,  68  N.  E.  871,  the  power  was  'to  give  ....  in  such 
manner  and  proportions  as  she  may  appoint,'  among  several  classes  named, 
and,  in  event  of  her  failure  to  appoint,  the  estate  was  to  be  divided 
among  the  persons  composing  those  classes.  The  power  was  exercised 
by  appointing  one  person  to  receive  the  whole  estate,  and  a  tax  was 
held  to  be  assessable.  In  Matter  of  Dows,  167  N.  Y.  227,  88  Am.  St. 
Rep.  509,  52  L.  R.  A.  433,  60  N.  E.  439,  the  power  declared  that  the 
estate  should  'vest  absolutely  and  at  once  in  such  of  his  children  him 
surviving  and  the  issue  of  his  deceased  children  as  he  [the  donee 
of  the  power]  may  by  his  last  will  and  testament  designate  and  appoint, 
and  in  such  manner  and  upon  such  terms  as  he  may  legally  impose.' 
The  power  was  exercised  by  creating  life  estates  in  his  children  de- 
pendent upon  a  term  of  years  or  a -prior  death  and  giving  the  remainder 
of  each  life  estate  to  the  other  child.  A  tax  was  upheld.  The  prin- 
ciple applied  in  these  and  other  cases  was  that,  the  power  being  effec- 
tively exercised,  and  it  being  necessary  to  resort  to  the  will,  by  which 
it  was  exercised,  before  the  title  could  be  established  to  the  property 
claimed,  the  transfer  was  by  force  of  the  power  of  appointment  and 
was  subject  to  taxation.  The  cases  in  which  the  tax  was  not  upheld 
[Matter  of  Lansing,  183  N.  Y.  238,  74  N.  E.  882;  Estate  of  Backhouse, 
110  App.  Div.  737,  96  N.  Y.  Supp.  466,  affirmed,  185  N.  Y.  544,  77  N.  E. 
1181]  apply  the  reverse  of  this  principle." 

In  Estate  of  Potter,  51  App.  Div.  212,  64  N.  Y.  Supp.  1013,  a  man 
devised  one-fifth  of  his  residuary  estate  to  trustees  to  pay  the  income 
to  his  daughter  during  her  life,  the  property  to  go  in  equal  proportions 
at  her  death  to  her  surviving  issue.  He  also  gave  her  power  to  appoint, 
by  will,  such  share  among  his  descendants  living  at  her  death.  She 
appointed  the  property  by  her  will  in  equal  proportions  among  her 
daughters,  excluding  her  sons.  The  property  thus  appointed  was  held 
taxable. 

IT  See  the  note  in  139  Am.  St.  Rep.  89. 

«  Commonwealth  v.  Stoll,  132  Ky.  234,  114  S,  W.  279,  116  S.  W. 
687. 


POWERS  OF  APPOINTMENT.  115 

or  created,  gives  her  the  fee;  and  it  is  not  proper  to 
assess  a  transfer  tax  on  his  heirs  on  the  theory  that 
the  realty  descended  from  him  to  them,  merely  be- 
cause she  died  without  exercising  her  power  of  dis- 
position.18 

§  82.  Change  of  Realty  to  Personalty  by  Equitable 
Conversion. — It  has  been  affirmed  in  New  York  that 
transfers  under  a  power  of  appointment,  given  the 
beneficiary  by  a  will  creating  a  trust  in  real  estate, 
are  subject  to  the  inheritance  tax,  if  at  the  time  of 
the  exercise  of  the  power,  subsequent  to  the  passage 
of  the  statute  imposing  such  tax,  the  property  was  in 
the  form  of  personalty,  having  been  converted  thereto 
by  the  trustees  under  a  power  of  sale  in  the  will, 
although  at  the  time  when  the  original  testator  died 
it  was  not,  as  real  estate,  subject  to  the  inheritance 
tax.20  It  has  also  been  decided  in  that  state  that  when 
real  estate  is  conveyed  to  trustees  with  power  to  sell 
or  mortgage,  and  with  a  provision  that  at  the  death 
of  the  grantor  it  should  be  held  in  trust  for  her 
daughters,  each  one  of  them  being  given  power  to 
appoint  by  will  her  share  among  her  issue,  in  default 
of  such  appointment  her  share  to  belong  to  her  sur- 
viving issue,  and  the  trustees  convert  the  estate  into 
personal  property,  and  the  daughter  dies  leaving  issue 
but  without  having  exercised  the  power  of  appoint- 
ment, the  transfer  of  the  property  on  her  death  is  sub- 
ject to  the  inheritance  tax,  although  as  real  estate  it 
would  not  be  taxable.  The  doctrine  of  equitable  con- 
version cannot  be  invoked,  says  the  court,  for  the  pur- 
pose of  exempting  property  from  taxation.21 

"  Matter  of  Lynn,  34  Misc.  Rep.  681,  70  N.  Y.  Supp.  730. 
20  Matter  of  Dows,  167  N.  Y.  227,  88  Am.  St.  Rep.  509,  52  L.  R.  A. 
433,  60  N.  E.  439. 

*i  Matter  of  Bartow,  30  Misc.  Rep.  27,  62  N.  Y.  Supp.  1000. 


116  INHERITANCE  TAXATION. 

§  83.  Nonresidents— Situs  of  Property.— It  has  al- 
ready been  noted,  in  preceding  sections  of  this  chapter, 
that  it  is  the  exercise  of  a  power  of  appointment,  not 
its  creation,  which  effects  the  taxable  transfer;  and 
that  the  estate,  so  far  as  concerns  the  succession  tax, 
is  considered  as  though  it  belonged  absolutely  to  the 
donee  of  the  power  and  was  by  him  bequeathed  or  de- 
vised by  will.  For  the  purpose  of  the  tax,  the  execu- 
tion of  the  power  is  deemed  the  source  of  title  of  the 
appointees. 

Again,  the  basis  of  the  power  to  tax  is  the  fact  of 
dominion  over  the  subject  of  taxation  at  the  time  the 
tax  is  to  be  imposed;  but  the  subject  of  taxation  may 
be  either  property  of  a  tangible  character  or  a  priv- 
ilege conferred  by  statute.  Therefore,  the  right  of 
the  state  to  tax  is  limited  to  cases  where  it  has  domin- 
ion or  jurisdiction  over  the  property  or  of  the  priv- 
ilege; and  an  instance  or  example  of  such  privilege  is 
the  permission  granted  by  the  state  to  the  appointee 
under  a  power  of  appointment  to  take  property  by 
virtue  of  the  exercise  of  the  power.22 

Hence  it  has  been  held  that  in  case  of  a  transfer 
effected  through  the  exercise,  by  a  resident  of  New 
Jersey,  of  a  power  of  appointment  created  by  the  will 
of  a  resident  of  New  York,  only  the  transfer  of  so 
much  of  the  property  as  is  situated  in  New  York  is 
taxable  in  that  state.28  It  has  also  been  decided  that 

22  Estate  of  Kissell,  65  Misc.  Hep.  443,  121  N.  Y.  Supp.  1088,  af- 
firmed, 142  App.  Div.  934,  127  N.  Y.  Supp.  1127. 

as  Estate  of  Kissell,  65  Misc.  Eep.  443,  121  N.  Y.  Supp.  1088,  af- 
firmed, 142  App.  Div.  934,  127  N.  Y.  Supp.  1127.  Said  the  court  in 
this  case:  "As  the  power  of  appointment  given  to  the  decedent  herein 
•was  exercised  by  her  while  a  resident  of  the  state  of  New  Jersey,  and 
•was  consummated  by  the  probate  of  her  will  under  the  laws  of  the 
state  of  New  Jersey,  the  general  privilege  of  permitting  all  the  property 
included  within  the  power  to  pass  to  the  beneficiaries  appointed  by  the 
decedent  was  a  privilege  granted  by  the  state  of  New  Jersey,  and  not 
by  the  state  of  New  York.  The  only  privilege  granted  by  the  state 
of  New  York  was  to  permit  the  transfer  of  the  property  located  in 


POWERS   OP   APPOINTMENT.  117 

in  the  event  of  a  transfer  effected  by  the  exercise,  by 
a  resident  of  Rhode  Island,  of  a  power  of  appointment 
created  by  a  resident  of  New  York,  is  not  taxable  in 
New  York,  the  property  beiag  bonds  and  mortgages 
physically  situated  in  New  Jersey,  and  the  bulk  of 
the  trust  estate  being  secured  by  mortgages  on  real 
estate  within  the  state  of  New  York.2* 

.When  a  man  by  will  exercised  a  power  of  appoint- 
ment as  to  property  situated  in  New  York  in  favor 
of  his  wife,  who  disposed  of  the  property  by  will  which 
was  probated  in  another  state,  the  property,  although 
removed  from  New  York  before  distribution  under  her 
will,  was  held  subject  to  the  inheritance  tax.25  But 
where  a  nonresident  testator,  whose  property  was  en- 
tirely without  the  state,  left  specified  property  in  trust 
for  his  daughter  for  life,  with  power  to  appoint  the 
remainder  after  the  trust,  and  the  trustee  was  a  resi- 
dent, and  thereafter  the  daughter,  then  a  resident  of 
the  state,  executed  the  power  by  will,  it  was  decided 
that  this  exercise  was  not  a  taxable  transfer.28  It  has 
also  been  decided  that  an  estate  of  a  nonresident  tes- 
tator, acquired  as  appointee  named  by  a  legatee  for 
life,  with  power  to  name  the  remainderman,  may  be 
assessed  prior  to  the  administration  of  the  estate  of 
the  legatee,  who  dies  shortly  before  the  appointee.27 
Where  a  resident  of  the  state  gave  a  power  of  appoint- 
ment by  her  will,  and  the  appointee,  also  a  resident 

New  York  to  pass  to  the  appointees  in  accordance  with  the  provisions 
of  the  will  probated  in  New  Jersey.  Therefore  the  jurisdiction  of  the 
state  of  New  York  to  tax  the  transfer  of  property  passing  under  the 
will  of  decedent  is  limited  to  the  property  situated  in  this  state  at  the 
time  of  her  death." 

a*  Estate  of  Fearing,  138  App.  Div.  881,  123  N.  Y.  Supp.  396. 

*B  Estate  of  Lord,  111  App.  Div.  152,  97  N.  Y.  Supp.  553,  affirmed, 
186  N.  Y.  549,  79  N.  E.  1110. 

2«  Estate  of  Thomas,  39  Misc.  Rep.  136,  78  Ky.  Supp.  981. 

*T  Estate  of  Chabot,  44  App.  Div.  340,  60  N.  Y.  Supp.  927,  affirmed, 
167  N.  Y.  280,  60  N.  E.  598. 


118  INHERITANCE  TAXATION. 

of  the  state,  exercises  the  appointment  by  will,  the 
beneficiary  becomes  liable  under  the  transfer  tax  of 
New  York,  although  the  property,  real  and  personal, 
is  situated  without  the  state.28 

§  84.  Probate  Court  Having  Jurisdiction. — Since 
it  is  the  exercise,  not  the  creation,  of  a  power  of  ap- 
pointment which  effects  the  transfer  against  which 
the  tax  is  enforced,  the  surrogate  of  the  county  in 
which  the  donee  of  the  power  resided  at  the  time  of 
his  death,  and  in  which  his  will  is  probated,  and  not 
the  surrogate  of  the  county  in  which  the  creator  of 
the  power  resided,  has  juirsdiction  to  determine 
whether  the  transfer  is  taxable.29  Where  the  donee 
of  a  power,  who  is  a  nonresident  of  the  state,  exer- 
cises the  power  in  connection  with  real  property  in 

28  Estate  of  Hull,  111  App.  Div.  322,  97  N.  Y.  Supp.  701,  affirmed, 
186  N.  Y.  586,  79  N.  E.  1107.  "We  are  of  opinion,"  said  the  court  in 
reversing  the  surrogate's  decision  in  this  case,  "that  the  learned  surro- 
gate has  fallen  into  error  in  reversing  the  original  decree  in  this  matter, 
due  to  the  confusion  of  the  question  by  an  entirely  irrelevant  detail  in 
relation  to  the  situs  of  the  property  which  passed  to  the  said  Ida  M. 
Hull.  The  question  is  not  where  the  property  was  located,  or  whether  it 
was  real  estate  or  personal  property,  but  whether  the  beneficiary  came 
into  its  possession  through  the  exercise  of  a  privilege  conferred  by  the 
state  of  New  York It  being  the  privilege  upon  the  right  to  suc- 
cession to  property  by  means  of  a  will  that  is  taxed,  and  the  subject 
of  the  litigation  being  within  the  jurisdiction  of  the  state,  it  seems 
clear  that  the  beneficiary  under  the  power  of  appointment  contained 
in  the  will  of  Caroline  C.  Hull,  a  resident  of  this  state,  upon  the  exer- 
cise of  that  power  by  Wager  J.  Hull,  likewise  a  resident  of  this  state,  is 
bound  to  pay  the  tax  imposed  upon  that  privilege,  regardless  of  the 
question  of  where  the  property  to  which  the  power  related  was  located. 
Ida  M.  Hull  gets  all  of  her  rights  in  and  to  the  property  by  reason  of 
the  exercise  of  the  power  (a  privilege  granted  by  the  state  of  New 
York),  and  she  may  not  be  relieved  from  that  obligation  because  of  the 
fact  that  the  property  itself  was  without  the  jurisdiction  of  the  state 
at  the  time  the  power  was  exercised.  That  is  an  entirely  irrelevant 
matter." 

2»  Estate  of  Seaver,  63  App.  Div.  2S3,  71  N.  Y.  Supp.  544;  People 
v.  Williams,  69  Misc.  Eep.  402,  127  N.  Y.  Supp.  749. 


POWERS  OP  APPOINTMENT.  119 

the  state,  the  surrogate  court  in  the  county  where  the 
land  is  situated  has  jurisdiction  to  assess  the  tax.30 

§  85.  Rate  of  Taxation — Relationship  of  Parties. 
The  relationship  of  the  parties,  which  determines  the 
rate  of  taxation,  or  whether  any  tax  at  all  can  be 
assessed,  is  the  relationship  between  the  donee  of 
the  power  of  appointment  and  the  appointees.  This 
necessarily  follows  from  the  propositions  that  the 
donee  is  regarded  as  devising  to  the  appointees  prop- 
erty of  which  he  is  the  absolute  owner,  and  that  it  is 
his  exercise  of  the  power,  not  the  creation  of  the 
power,  which  effects  the  taxable  transfer.81 

§  86.  Time  for  Assessment  of  Tax. — As  the  exer- 
cise of  a  power  of  appointment,  rather  than  the  cre- 
ation of  the  power,  effects  the  transfer  which  is  tax- 
able, remainders  subject  to  the  power  of  appointment 
are  not  taxable  until  the  time  comes  for  the  exercise 
of  the  power  to  appoint  conferred  upon  the  life  bene- 
ficiary.32 The  tax  is  to  be  assessed  at  his  death  on 
the  present  value  of  all  the  property  passing  under 
the  power.33  Remainders  created  in  a  trust  fund  by 
the  exercise  of  a  power  of  appointment  are  subject 
to  taxation  at  the  time  of  the  transfer  under  such  act, 

«o  Estate  of  Lowndes,  60  Misc.  Eep.  506,  113  N.  Y.  Supp.  1114. 

si  Estate  of  Seaver,  63  App.  Div.  283,  71  N.  Y.  Supp.  544;  Estate  of 
Walworth.  66  App.  Div.  171,  72  N.  Y.  Supp.  984;  Estate  of  Rogers,  71 
App.  Div.  461,  75  N.  Y.  Supp.  835,  affirmed,  172  N.  Y.  617,  64  N.  E, 
1125. 

The  rate  of  taxation  will  be  found  discussed  in  the  very  recent  case  of 
Estate  of  Burgess  (N.  Y.),  97  N.  E.  591. 

32  Estate  of  Howe,  86  App.  Div.  286,  83  N.  Y.  Supp.  825,  affirmed, 
176  N.  Y.  570,  68  N.  E.  1118;  Estate  of  Burgess  (N.  Y.),  97  N.  E.  591. 

ss  Estate  of  Tucker,  27  Misc.  Rep.  616,  59  N.  Y.  Supp.  699.  But 
see  Hoyt  v.  Hancock,  65  N.  J.  Eq.  688,  55  Atl.  1004.  That  the  value 
of  the  property  is  determinable  as  of  the  date  of  the  death  of  the  donee 
of  the  power,  rather  than  as  of  the  date  of  the  death  of  the  creator  of 
the  power,  see  Fisher  v.  State,  106  Md.  104,  66  Atl.  661. 


120  INHERITANCE  TAXATION. 

if  they  are  absolute  and  not  subject  to  be  devested 
or  to  fail  in  any  contingency  whatever,  and  their 
present  value  is  determined  by  aid  of  the  table  of 
annuities." 

»«  Matter  of  Dows,  167  N.  Y.  227,  88  Am.  St.  Rep.  509,  52  L.  R.  A. 
433,  60  N.  E.  439. 


LITE  ESTATES,  REMAINDERS,  AND  CONTINGENT  INTERESTS.      121 


CHAPTER  VI. 

LIFE    ESTATES,    REMAINDERS,    AND    CONTINGENT 
INTERESTS. 

§     90.  Life  Estates  and  Annuities. 

§     91.  Vested  Eemainders. 

§     92.  Future  and  Contingent  Estates — Earlier  New  York  Rule. 

§     93.  Future  and  Contingent  Estates— Later  New  York  Rule, 

§     94.  Future  Contingent  Estates — Illinois  Eule. 

§     95.  Future  Contingent  Estates — Minnesota  Eule. 

§     96.  Future  Contingent  Estates — Pennsylvania  Eule. 

§     97.  Future  Contingent  Estates — Wisconsin  Eule. 

§     98.  Future  Contingent  Estates — Tennessee  Eule. 

§     99.  Future  Contingent  Estates — Massachusetts  Eule. 

§  100.  Future  Contingent  Estates — United  States  Eule. 

§  101.  Person  or  Fund  Liable  for. Tax. 

§  102.  Amount  of  Tax  on  Contingent  Eemainder. 

§  103.  Law  Governing  Tax — Eetrospective  Statute. 

§  90.  Life  Estates  and  Annuities  are  not  over- 
looked by  the  inheritance  tax  statutes;  their  passing 
by  last  will  and  testament  are  made  transfers  pres- 
ently taxable,  and  in  some,  perhaps  all,  jurisdictions 
this  is  true  although  they  may  be  devested  or  cut 
down  to  an  estate  for  years  by  the  act  or  omission  of 
the  life  tenant.1  The  value  of  the  life  estate  is  or- 
dinarily ascertainable  by  aid  of  mortality  tables.  In 
New  York  it  is  calculated  by  the  methods  and  stand- 

i  In  re  Hoyt,  37  Misc.  Eep.  720,  76  N.  Y.  Supp.  504.  In  Estate  of 
Plum,  37  Misc.  Eep.  466,  75  N.  Y.  Supp.  940,  a  devisee  was  held  taxable 
as  for  an  estate  for  life,  although  she  might,  by  marrying,  cut  down  the 
estate  to  one  for  a  term  of  years  only.  But  in  an  earlier,  case  it  was 
decided  that  the  value  of  a  bequest  by  the  testator  to  his  widow  for  life 
or  until  she  again  married  could  not  be  determined  for  purposes  of  the 
transfer  tax  until  the  termination  of  her  estate:  Estate  of  Mill  ward, 
6  Misc.  Eep.  425,  27  N.  Y.  Supp.  286;  and  the  New  York  court  of 
appeals,  under  the  former  statute  of  that  state,  affirmed  that  the  value 
of  a  life  estate  subject  to  determination  by  the  remarriage  of  the  life 
tenant  could  not  be  ascertained  until  the  estate  terminated:  Matter  of 
Sloane,  154  N.  Y.  109,  47  N.  E.  978.  The  New  York  statute  now  pro- 
vides that  "where  an  estate  for  life  or  for  years  can  be  devested  by  the 


122  INHERITANCE  TAXATION. 

ards  of  mortality  and  value  employed  by  the  super- 
intendent of  insurance.  In  one  case  this  theory  of 
computation  was  applied,  even  though  the  life  tenant 
had  died  before  the  making  of  the  appraisement.2 
But  in  a  subsequent  case  this  theory  was  departed 

act  or  omission  of  the  legatee  or  devisee,  it  shall  be  taxed  as  if  there 
were  no  possibility  of  such  devesting":  Laws  1911,  p.  2116. 

When  a  testator,  by  his  will,  passes  his  residuary  estate  to  his  brother, 
and  by  a  codicil  directs  him  to  pay  C.  one  thousand  dollars  a  year  for 
life,  and  to  execute  to  her  an  obligation  to  that  effect,  the  annuity  to 
C.  is  a  charge  on  the  residue,  and  property  therein  passes  which  may  be 
taxed  at  its  present  worth:  Estate  of  Eothschild,  71  N.  J.  Eq.  210,  63 
Atl.  615,  72  N.  J.  Eq.  425,  65  Atl.  1118. 

A  gift  in  lieu  of  dower,  of  eight  thousand  dollars  payable  annually 
in  equal  installments,  is  held  not  an  annuity  in  Chisholm  v.  Shields, 
67  Ohio  St.  374,  66  N.  E.  93. 

There  is  a  distinction  between  income  and  an  annuity.  The  former 
embraces  only  the  net  profits  after  deducting  all  necessary  expenses 
and  charges;  the  latter  is  a  fixed  amount  payable  absolutely  and  at 
stated  intervals:  Peck  v.  Kinney,  143  Fed.  76,  74  C.  C.  A.  270,  holding 
that  a  bequest  was  taxable  as  an  annuity,  not  as  a  gift  of  income,  as 
provided  by  the  war  revenue  act  of  1898. 

Where  a  will,  after  giving  annuities  to  the  sisters  of  the  testator, 
bequeathed  the  residue  of  the  estate  to  a  university,  and  the  executor, 
pursuant  to  recommendations  in  the  will,  purchased  the  annuities  from 
an  insurance  company,  in  fixing  the  amount  of  the  transfer  tax  to  be 
paid  by  the  residuary  legatee,  the  court  will  deduct  the  amount  so  paid 
for  the  annuities,  notwithstanding  such  amount  exceeds  the  sum  which 
the  state  superintendent  of  insurance  determines  the  annuities  to  be 
worth:  Matter  of  Hutchinson,  105  App.  Div.  487,  94  N.  Y.  Supp.  354. 

Where  a  man  devises  land  to  his  son's  wife  and  directs  the  devisee 
to  pay  out  of  the  rents  and  profits  of  the  land  the  sum  of  two  thousand 
dollars  a  year  to  his  stepdaughter  in  equal  quarterly  payments,  and 
further  directs  that  "all  the  bequests  of  money  in  this  will  made  are 
to  be  paid  without  deductions  for  state  tax,"  it  has  been  held  that  the 
annuity  is  chargeable  with  the  collateral  inheritance  tax,  and  there  ap- 
pearing no  intention  in  the  will  to  distinguish  the  bequest  in  money 
payable  at  stated  periods  out  of  the  rents  and  profits  of  the  land  from 
bequests  of  round  sums  of  money,  the  tax  on  the  annuity  must  be  paid 
out  of  the  residuary  estate:  Estate  of  Lea,  194  Pa.  524,  45  Atl.  337. 

«  In  re  Jones,  28  Misc.  Rep.  356,  59  N.  Y.  Supp.  983.  In  appraisals 
under  the  statute  of  1885,  the  value  of  a  life  estate  was  estimated  by 
reference  to  the  tables  of  mortality  adopted  by  the  general  rules  of 
practice:  In  re  Robertson,  5  Dem.  Sur.  (N.  Y.)  92.  See  Union  Trust 
Co.  v.  Durfee,  125  Mich.  487,  84  N.  W.  1101. 


LIFE  ESTATES,  REMAINDERS,  AND  CONTINGENT  INTERESTS.       123 

from  in  ascertaining  the  value  of  a  remainder,  where 
the  life  tenant  had  greatly  exceeded  the  expectancy  of 
life  and  encroached  on  the  principal  before  his  death." 
And  the  federal  courts,  in  applying  the  war  revenue 
act  of  1898,  have  declined  to  resort  to  mortality  tables 
for  the  purpose  of  ascertaining  a  life  expectancy  when 
the  period  of  that  life  had  already  been  determined.4 
They  have  also  declined  to  use  mortality  tables  to 
ascertain  the  value  of  the  remainderman's  interest 
where  the  division  of  the  residue  of  the  testator's  es- 
tate was  postponed  until  the  death  or  remarriage  of 
his  widow,  for,  observed  the  court,  if  the  use  of  mor- 
tuary tables  are  permissible  in  a  proper  case,  they 
should  not  be  used  here,  since  one  of  the  contingencies 
contemplated  by  the  will  is  the  remarriage  of  the 
widow,  and,  while  the  probability  of  death  may  per- 
haps be  approximately  estimated  from  the  recorded 
experience  of  insurance  companies,  there  are  as  yet  no 
statistics  available  from  which  the  probability  of 
remarriage  may  even  be  conjectured.5  In  Massachu- 
setts, however,  the  valuation  of  the  contingent  re- 
mainder of  property  devised  to  an  exempt  person  for 
life  is  to  be  made  as  of  the  date  of  the  testator's 
death,  according  to  the  rule  laid  down  in  the  statute, 
by  actuaries'  combined  experience  tables,  and  not  ac- 
cording to  the  time  of  the  actual  termination  of  the 
life  estate,  although  such  termination  occurs  before 
the  valuation  is  made.5a 

In  fixing  the  tax  upon  annuities  created  by  will,  the 
probable  duration  of  the  life  of  the  annuitant  is  ascer- 
tained by  the  rule  and  standard  of  mortality  employed 
in  ascertaining  the  value  of  policies  of  life  insurance 
and  annuities.  Upon  the  value  of  the  annuity  thus 

»  Estate  of  Hall,  36  Misc.  Rep.  618,  73  N.  Y.  Supp.  1124. 

«  Herold  v.  Kahn,  159  Fed.  608,  86  C.  C.  A.  598. 

5  Herold  v.  Shanley,  146  Fed.  20,  76  C.  C.  A.  478. 

6*  Howe  v.  Howe,  179  Mas3.  546,  55  L.  K.  A.  626,  61  N.  E.  225. 


124  INHERITANCE  TAXATION. 

determined  the  amount  of  the  transfer  tax  is  computed 
and  becomes  payable  forthwith  out  of  the  principal 
fund  set  aside  for  creating  the  annuity.  Should  this 
fund  happen  to  be  the  residuary  estate  of  the  testator, 
the  tax  paid  upon  the  annuity  is  returned  to  such 
estate  by  deducting  from  each  annual  payment  of  the 
annuity  the  proportionate  part  of  the  tax,  to  be  ascer- 
tained by  dividing  the  amount  of  the  tax  paid  by 
the  number  of  years  the  annuity  will  probably  con- 
tinue.* 

The  Massachusetts  statute  contemplates  that  the 
tax  is  to  be  paid  out  of  the  annuity  as  soon  as  the 
annuity  becomes  payable,  and  at  the  time  when  pay- 
ments on  account  of  it  are  made.  "The  effect  of  this 
construction,"  to  use  the  language  of  Justice  Field, 
"may  be  that  the  first  payment  or  payments  on  ac- 
count of  the  annuity  will  be  exhausted  by  the  tax. 
Other  methods  of  collecting  the  tax  might  have  been 
adopted,  such  as  collecting  the  tax  on  each  payment 
and  deducting  it  from  such  payment,  and  then  the 
tax  would  be  collected  proportionately  to  the  amounts 
paid  so  long  as  the  annuity  was  payable,  but  the 
method  found  in  the  statute  is  one,  we  think,  which 
the  legislature  could  adopt. ' ' T 

Under  the  Illinois  statute  a  present  inheritance  tax 
cannot  be  imposed  upon  each  annuitant  to  the  full  ex- 
tent of  his  proportionate  share  of  the  entire  fund  from 
which  the  annuity  is  to  be  paid,  although  by  joint 
action  of  all  annuitants  the  entire  income  may  be 
divided  between  them,  where  the  will  limits  the 
amount  to  be  paid  to  each  in  the  absence  of  such 
joint  action,  and  no  increase  can  be  made  without  the 
consent  of  all.* 

«  In  re  Tracy,  179  N.  T.  501,  72  N.  E.  519. 

»  Minot  v.  Winthrop,  162  Mass.  113,  26  L.  B.  A.  259,  38  N.  E.  512. 

«  People  v.  McCormick,  208  111.  437,  64  L.  B.  A.  775,  70  N.  E.  350. 


LIFE  ESTATES,  REMAINDERS,  AND  CONTINGENT  INTERESTS.      125 

§  91.  Vested  Remainders. — Whatever  uncertainty 
there  may  be  as  to  the  application  of  inheritance  tax 
statutes  to  contingent  remainders,  and  there  is  no 
little  of  it,  as  will  presently  appear,  there  seems  to  be 
no  doubt  that  ordinary  vested  remainders,  not  sub- 
ject to  any  condition  or  contingency,  are  presently 
taxable  under  the  general  system  of  inheritance  tax- 
ation now  in  vogue.8  And  the  fact  that  the  owner  of 

•  Ayers  v.  Chicago  Title  etc.  Co.,  187  111.  42,  58  N.  E.  318;  People 
v.  McCormick,  208  HI.  437,  64  L.  K.  A.  775,  70  N.  E.  350;  Matter  of 
Dows,  167  N.  Y.  227,  88  Am.  St.  Rep.  509,  52  L.  R.  A.  433,  60  N.  E.  439 ; 
Estate  of  Vinot,  7  N.  Y.  Supp.  517;  Estate  of  Bogert,  25  Misc.  Eep. 
466,  55  N.  Y.  Supp.  751 ;  Estate  of  Sherman,  30  Misc.  Rep.  547,  63  N.  Y. 
Supp.  957;  Estate  of  Runcie,  36  Misc.  Rep.  607,  73  N.  Y.  Supp.  1120; 
Estate  of  Clarke,  39  Misc.  Rep.  73,  78  N.  Y.  Supp.  869;  Commonwealth's 
Appeal,  127  Pa.  438,  17  Atl.  1094;  Brown  v.  Kinney,  128  Fed.  310. 

Vested  remainders  for  life  and  contingent  remainders  absolute  are 
undoubtedly  embraced  in  the  words  "all  property  in  possession  or  ex- 
pectancy" and  "all  estates,  real,  personal  and  mixed,  of  every  kind 
whatsoever":  Bailey  v.  Drane,  96  Tenn.  16,  33  S.  W.  573. 

The  value  of  a  vested  remainder,  for  purposes  of  the  inheritance  tax 
under  the  New  York  statute  of  1892,  is  the  value  of  the  whole  estate 
less  the  value  of  the  life  estate:  Estate  of  Lange,  55  N.  Y.  Supp.  750; 
Estate  of  Bogert,  25  Misc.  Rep.  466,  55  N.  Y.  Supp.  751. 

Where  corporate  stock  is  bequeathed  to  one  for  life,  with  power  to 
invest  and  reinvest  it,  with  remainder  to  another,  the  vested  interest  of 
the  remainderman  is  subject  to  the  inheritance  tax,  regardless  of  whether 
the  life  tenant  is  entitled  to  the  possession  of  the  corpus:  Estate  of 
Bushnell,  73  App.  Div.  325,  77  N.  Y.  Supp.  4,  affirmed,  172  N.  Y.  649, 
65  N.  E.  1115. 

A  bequest  for  life  to  the  testator's  mother,  with  remainder  to  his 
sister,  upon  the  death  of  the  mother,  vests  the  entire  estate,  legal  and 
equitable,  in  the  remainderman,  and  a  residuary  legatee  of  the  sister 
takes  the  remainder  subject  to  the  inheritance  tax.  And  a  bequest  to 
the  testator's  widow  for  life,  with  remainder  to  his  son  and  daughter 
subject  to  a  power  of  appointment  by  the  widow,  who  exercises  the  power 
in  favor  of  the  daughter  by  will  admitted  to  probate  on  the  day  of  the 
death  of  the  daughter,  vests  in  the  daughter  upon  the  death  of  the 
father,  passes  under  the  will  of  the  former  to  her  residuary  legatee,  and 
is  subject  to  the  tax.  Where  there  has  been  no  settlement  of  the  ex- 
ecutor's accounts  under  the  will  of  the  mother,  and  hence  the  amount 
of  the  residuary  estate,  if  any,  is  unascertainable,  the  amount  to  which 
the  daughter  was  entitled  as  residuary  legatee  is  not  subject  to  the  tax: 
Estate  of  Zefita,  167  N.  Y.  280,  60  N.  E.  598,  affirming  44  App.  Div.  340, 
60  N.  Y.  Supp.  927. 


126  INHERITANCE  TAXATION. 

the  prior  life  estate  is  exempt  does  not.  relieve  the 
owner  of  the  remainder  from  the  tax.10  The  present 
value  of  the  remainder,  for  purposes  of  the  inheritance 
tax,  is  susceptible  of  ready  computation  by  aid  of 
mortality  tables,11  and  the  New  York  statute  contem- 
plates that,  the  respective  values  of  the  life  estate  and 
remainder  having  been  ascertained,  the  tax  shall  be 
computed  and  paid  forthwith  out  of  the  property 
transferred.  "The  result  is  that  the  life  tenant  loses, 
during  the  continuance  of  his  estate,  the  interest  upon 
the  corpus  of  the  trust  so  paid  out,  and  eventually  the 
remainderman  receives  his  estate  diminished  by  the 
amount  of  such  payment. ' ' ia 

§  92.  Future  and  Contingent  Estates — Earlier  New 
York  Rule. — Until  quite  recently  the  taxation  of  future 
contingent  estates  or  remainders  in  New  York  was 
governed  by  the  following  statute:  " Estates  in  ex- 
pectancy which  are  contingent  or  defeasible  shall  be 
appraised  at  their  full  undiminished  value  when  the 
persons  entitled  thereto  shall  come  into  the  beneficial 
enjoyment  or  possession  thereof,  without  diminution 
for  or  on  account  of  any  valuation  theretofore  made 
of  the  particular  estates  for  purposes  of  taxation,  upon 
which  said  estates  in  expectancy  may  have  been  lim- 
ited." Under  this  statute  it  was  repeatedly  held  that 
future  contingent  estates  therein  mentioned  were  not 
taxable  until  they  vested  in  possession  and  the  bene- 
ficial owner  thereby  ascertained.  The  taxation  of  such 
interests  was  postponed  until  the  contingency  was  set- 
tled. To  the  mind  of  the  courts  the  law  in  its  lan- 

10  Appeal  of  the  Commonwealth,  127  Pa.  435,  17  Atl.  1094;  Bailey  v. 
Doane,  96  Tenn.  16,  33  S.  W.  573. 

"  Matter  of  Dows,  167  N.  Y.  227,  88  Am.  St.  Eep.  509,  52  L.  E.  A. 
433,  60  N.  E.  439;  Estate  of  Lange,  55  N.  Y.  Supp.  750;  Estate  of 
Bogert,  25  Misc.  Rep.  466,  55  N.  Y.  Supp.  751. 

«  Matter  of  Tracy,  179  N.  Y.  501,  72  N.  E.  519. 


LIFE  ESTATES,  REMAINDERS,  AND  CONTINGENT  INTERESTS.       127 

guage  gave  abundant  evidence  of  an  intent  to  subject 
only  real  and  beneficial  interests  to  taxation,  and  noth- 
ing in  its  policy  justified  the  imposition  of  such  a 
burden  where  no  corresponding  benefit  had  been  re- 
ceived; the  law  did  not  contemplate  the  taxation  of 
mere  possibilities  or  chances  of  the  acquisition  of 
property,  including  not  only  contingent  estates,  but 
also  estates  technically  vested  but  liable  to  be  devested. 
Such  were  not  to  be  taxed  until  the  contingencies  had 
passed  or  been  fulfilled  and  the  right  to  succeed  to 
the  property  become  certain  and  absolute.13  "For 

"  Estate  of  Cager,  111  N.  Y.  343,  18  N.  E.  866;  Matter  of  Stewart, 
131  N.  Y.  274,  14  L.  E.  A.  836,  30  N.  E.  184;  Matter  of  Curtis,  142  N. 
Y.  219,  36  N.  E.  887;  Matter  of  Hoffman,  143  N.  Y.  327,  38  N.  E.  311; 
Matter  of  Eoosevelt,  143  N.  Y.  120,  25  L.  R.  A.  695,  38  N.  E.  281;  Matter 
of  Davis,  149  N.  Y.  539,  44  N.  E.  185 ;  Matter  of  Gibson,  157  N.  Y.  680, 
51  N.  E.  1090.  To  the  same  effect,  see  In  re  Lefever,  5  Dem.  Sur.  (N. 
Y.)  184;  In  re  Hopkins,  6  Dem.  Sur.  (N.  Y.)  1;  In  re  Surrogate  of 
Cayuga  County,  46  Hun  (N.  Y.),  657;  Estate  of  Wallace,  4  N.  Y.  Supp. 
465;  Estate  of  Wheeler,  1  Misc.  Eep.  450,  22  N.  Y.  Supp.  1075;  Estate 
of  Wescott,  11  Misc.  Rep.  589,  33  N.  Y.  Supp.  426;  Estate  of  Langdon, 
11  App.  Div.  220,  43  N.  Y.  Supp.  419;  Estate  of  Travis,  19  Misc.  Rep. 
393,  44  N.  Y.  Supp.  349 ;  Estate  of  Eldridge,  29  Misc.  Rep.  734,  62  N.  Y. 
Supp.  1026;  Estate  of  Howell,  34  Misc.  Rep.  432,  69  N.  Y.  Supp.  1016; 
Estate  of  Lynn,  34  Misc.  Rep.  681,  70  N.  Y.  Supp.  730;  Estate  of  Plum, 
37  Misc.  Rep.  466,  75  N.  Y.  Supp.  940 ;  Estate  of  Clarke,  39  Misc.  Rep. 
73,  78  N.  Y.  Supp.  869;  Estate  of  Babcock,  81  App.  Div.  645,  81  N.  Y. 
Supp.  1117;  Estate  of  Le  Brun,  39  Misc.  Rep.  516,  80  N.  Y.  Supp.  486; 
Miller  v.  Tracy,  93  App.  Div.  27,  86  N.  Y.  Supp.  1024;  Estate  of  Naylor, 
120  App.  Div.  738,  105  N.  Y.  Supp.  667. 

In  Estate  of  Chesebrough,  34  Misc.  Rep.  365,  69  N.  Y.  Supp.  848,  a 
devise  to  a  corporation  to  be  created  on  certain  contingencies,  but  which 
had  not  in  fact  been  formed,  was  held  not  taxable. 

According  to  the  Davis  case  above,  if  the  person  to  whom  property 
passes  in  remainder,  under  the  will  of  a  testator  who  died  while  the  in- 
heritance tax  act  of  1885  was  in  force,  and  so  liable  to  taxation  there- 
under, cannot  be  known  until  the  death  of  the  life  tenant  (as  where  a 
devise  or  bequest  is  to  one  for  life,  with  remainder  over  to  the  children 
of  the  life  tenant  who  may  be  living  at  his  decease),  the  tax  on  the 
estate  transferred  to  the  remainderman  does  not  accrue  until  the  death 
of  the  life  tenant,  and  interest  upon  the  tax  is  chargeable  only  from  that 
date. 

In  the  above  Curtis  case  the  will  created  trusts  for  the  benefit  of  the 
testatrix's  two  daughters  and  two  grandchildren  named,  each  trust  for 


128  INHERITANCE  TAXATION. 

taxation, "  to  adopt  the  language  of  Justice  Finch,  "is 
a  hard  fact,  and  should  attach  only  to  actual  and  prac- 
tical ownership,  and  may  properly  be  compelled  to 
wait  until  chances  and  possibilities  develop  into  the 
truth  of  an  actual  estate  possessed,  or  to  which  there 
exists  an  absolute  right  of  future  possession. " 

§  93.  Future  and  Contingent  Estates — Later  New 
York  Rule.— Subsequently,  in  1899  and  1900,  the  New 
York  statute  was  materially  changed  so  as  to  read: 
"Whenever  a  transfer  of  property  is  made,  upon  which 
there  is,  or  in  any  contingency  there  may  be,  a  tax 
imposed,  such  property  shall  be  appraised  at  its  clear 
market  value  immediately  upon  such  transfer,  or  as 
soon  thereafter  as  practicable.  The  value  of  every 
future  or  limited  estate,  income,  interest  or  annuity 

the  life  of  the  beneficiary.  The  remainders  were  given  one-half  to  such 
of  her  nephews  and  one-half  to  such  of  her  nieces  named  as  should  be 
living  at  the  time  of  the  successive  termination  of  each  trust;  if  any  of 
them  should  then  be  dead  leaving  issue,  to  such  issue.  It  was  decided  that 
the  remainders  were  not  subject  to  taxation  under  the  act  of  1885  until 
the  successive  termination  of  each  trust;  that  it  could  not  until  then  be 
determined  whether  the  trust  fund  would  pass  to  persons  in  whose  hands 
it  would  be  taxable,  or  to  others  in  whose  possession  it  would  be  exempt, 
as  in  the  case  of  the  death  of  the  nephews  or  of  the  nieces  prior  to  the 
expiration  of  the  trust  the*one-half  of  the  remainder  would  go  to  the 
heirs  of  the  testatrix;  and  that  conceding  there  was,  upon  the  death  of 
the  testatrix,  a  technical  vesting  of  the  remainders  in  the  beneficiaries 
named,  this  nominal  fee  might  never  become  a  taxable  estate. 

Said  Justice  Finch  in  the  Hoffman  case  above:  "We  are  obliged  to 
follow  one  of  two  lines  of  construction.  We  must  open  all  the  nice  and 
difficult  questions  which  arise  under  a  will  as  to  the  vesting  of  technical 
legal  estates  although  future  and  contingent,  and  assess  the  tax  upon 
what  are  in  reality  only  possibilities  and  chances,  and  so  complicate  the 
statute  with  the  endless  brood  of  difficult  questions  which  gather  about 
the  construction  of  wills;  or  we  must  construe  it  in  view  of  its  aim  and 
purpose  and  the  object  it  seeks  to  accomplish,  and  so  subordinate 
technical  phrases  to  the  facts  of  actual  and  practical  ownership.  For 
taxation  is  a  hard  fact,  and  should  attach  only  to  such  ownership,  and 
may  properly  be  compelled  to  wait  until  chances  and  possibilities  develop 
into  the  truth  of  an  actual  estate  possessed,  or  to  which  there  exists  an 
absolute  right  of  future  possession," 


LIFE  ESTATES,  REMAINDERS,  AND  CONTINGENT  INTERESTS.      129 

dependent  upon  any  life  or  lives  in  being,  shall  be  de- 
termined by  the  rule,  method  and  standard  of  mor- 
tality and  value  employed  by  the  superintendent  of 
insurance  in  ascertaining  the  value  of  policies  of  life 
insurance  and  annuities  for  the  determination  of  lia- 
bilities of  life  insurance  companies,  except  that  the 
rate  of  interest  for  making  such  computation  shall  be 

five  per  centum  per  annum When  property  is 

transferred  in  trust  or  otherwise,  and  the  rights,  inter- 
ests or  estates  of  the  transferees  are  dependent  upon 
contingencies  or  conditions  whereby  they  may  be 
wholly  or  in  part  created,  defeated,  extended  or 
abridged,  a  tax  shall  be  imposed  upon  said  transfer 
at  the  highest  rate  which,  on  the  happenings  of  any 
of  the  said  contingencies  or  conditions,  would  be  pos- 
sible under  the  provision  of  this  article,  and  such  tax 
so  imposed  shall  be  due  and  payable  forthwith  by  the 
executors  or  trustees  out  of  the  property  transferred. ' ' 
It  thus  appears  that  whenever  a  transfer  of  property 
is  made,  upon  which  there  is,  or  by  any  contingency 
there  may  be,  a  tax  imposed,  the  property  is  to  be  ap- 
praised at  its  clear  market  value  and  the  transfer 
tax  is  due  and  payable  forthwith  out  of  the  property 
transferred.  The  tax  on  contingent  remainders,  there- 
fore, is  to  be  paid  forthwith  out  of  the  corpus  of  the 
estate  transferred.1* 

* '  By  this  amendment  the  legislature  clearly  intended 
to  change  the  law  upon  the  subject,  and  to  make  the 
transfer  tax  upon  property  transferred  in  trust  pay- 
able forthwith.  The  tax  is  not  required  to  be  paid 
by  the  conditional  transferee,  for  by  the  provisions 
of  the  statute  it  is  to  be  paid  'out  of  the  property 
transferred ' ;  so  that  whoever  may  ultimately  take  the 

i*  Estate  of  Tracy,  179  N.  Y.  501,  72  N.  E.  519;  Estate  of  Brez,  172, 
N.  Y.  609,  64  N.  E.  958;  Estate  of  Post,  85  App.  Div.  611,  82  N.  Y. 
Supp.  1079. 
9 


130  INHERITANCE  TAXATION. 

property  takes  that  which  remains  after  the  payment 
of  the  tax.  This  amendment  makes  provision  for 
property  transferred  in  trust.  Each  trust  estate  cre- 
ated is  to  be  separately  appraised,  and  the  tax  deter- 
mined according  to  the  percentage  fixed  by  the  statute 
for  those  who  are  contingently  entitled  to  the  estate; 
and,  when  fixed,  the  tax  is  forthwith  payable  out  of 
the  trust  estate."  15 

The  constitutionality  of  the  New  York  statute,  as 
thus  amended,  has  been  recognized  by  the  court  of 
appeals  of  that  state.18  And  the  supreme  court  of  the 
United  States  has  held  that  a  tax  on  remainders  before 
the  precedent  estate  terminates  and  the  remainders 
vest  in  possession  does  not  violate  the  fourteenth 
amendment  of  the  federal  constitution.17  The  court 
of  appeals,  however,  has  called  attention  to  what  it 
considers  an  inequality  caused  by  the  statute,  and  has 
suggested  a  remedy  therefor.18 

In  Estate  of  Vanderbilt,19  the  court  in  construing  the 
transfer  tax  law  as  affecting  payment  upon  contingent 
remainders,  and  holding  that  the  tax  was  payable 
forthwith  out  of  the  property  transferred,  said  through 
Justice  Haight :  "  It  seems  to  me  clear  that  the  legisla- 
ture by  this  amendment  intended  to  change  the  law 
upon  the  subject  and  to  make  the  transfer  tax  upon 

"  Estate  of  Vanderbilt,  172  N.  T.  69,  64  N.  E.  782;  Estate  of  Hoyt, 
44  Misc.  Eep.  76,  89  N.  Y.  Supp.  744. 

i«  Estate  of  Vanderbilt,  172  N.  Y.  69,  64  N.  E.  782;  Estate  of  Brez, 
172  N.  Y.  609,  64  N.  E.  958.  In  Estate  of  Lind,  132  App.  Div.  321,  117 
N.  Y.  Supp.  49,  affirmed,  196  N.  Y.  570,  90  N.  E.  1161,  where,  so  far  as 
known,  the  decedent  left  no  family  or  next  of  kin,  there  was  held  to  be 
no  transfer  "dependent  upon  contingencies  or  conditions  whereby  they 
may  be  wholly  or  in  part  created,  defeated,  extended  or  abridged." 

"  Orr  v.  Oilman,  183  U.  S.  278,  46  L.  Ed.  196,  22  Sup.  Ct.  Eep.  213. 

"  Estate  of  Brez,  172  N.  Y.  609,  64  N.  E.  958. 

i»  Estate  of  Vanderbilt,  172  N.  Y.  69,  64  N.  E.  782.  The  doctrine  of 
the  Vanderbilt  case  has  been  applied  in  Estate  of  Huber,  86  App.  Div. 
458,  83  N.  Y.  Supp.  769;  In  re  Burgess,  146  App.  Div.  348,  130  N.  Y. 
Supp.  686. 


LIFE  ESTATES,  REMAINDERS,  AND  CONTINGENT  INTERESTS.      131 

property  transferred  in  trust  payable  forthwith.  The 
tax  is  not  required  to  be  paid  by  the  conditional  trans- 
feree, for,  by  the  provision  of  the  statute  it  is  'to  be 
paid  out  of  the  property  transferred.'  So  that  who- 
ever may  ultimately  take  the  property  takes  that 
which  remains  after  the  payment  of  the  tax."  In  that 
case  the  court  was  dealing  only  with  a  contingent  re- 
mainder, but  the  principle  there  announced  is  neces- 
sarily involved  in  life  estates  created  by  trusts.20 

But  even  under  the  amended  statute  cases  have 
arisen  where  the  courts  have  not  deemed  it  proper 
presently  to  appraise  and  tax  contingent  remainders. 
Thus  where  a  testatrix  gave  her  brother  during  his 
life  all  her  personal  property,  with  the  right  to  use  so 
much  of  the  principal  as  might  prove  necessary  to 
maintain  him,  it  was  decided  that  a  transfer  tax 
should  not  be  assessed  against  the  remainder  until 
the  termination  of  the  life  estate,  since  it  could  not  be 
determined  until  then  how  much  of  the  principal  would 
be  consumed,  and  therefore  the  clear  market  value  of 
the  property  transferred  to  the  remainderman  could 
not  be  ascertained.21 

In  another  case  it  was  pointed  out  that  the  amend- 
ment taxing  presently  contingent  remainders  did  not 
repeal  the  provision  taxing  transfers  effected  by  the 
exercise  of  a  power  of  appointment;  and  that  where 

so  Estate  of  Tracy,  179  N.  Y.  501,  72  N.  E.  519.  Where  a  testator 
gave  the  residue  of  his  property  to  executors  in  trust  to  pay  the  income 
to  his  widow  during  her  widowhood,  and  on  her  death  to  a  daughter 
during  her  life,  and  directed  that  on  her  death  the  corpus  should  be 
divided  among  her  issue,  and  that  if  she  died  without  issue  the  corpus 
should  be  divided  amongst  his  next  of  kin  and  heirs,  it  was  held  that  the 
tax  on  the  corpus  was  payable  forthwith  out  of  the  property  transferred: 
Estate  of  Huber,  86  App.  Div.  458,  83  N.  Y.  Supp.  769.  Transfer  taxes 
on  the  life  interests  and  remainder  interests  in  a  trust  fund  are,  accord- 
ing to  Estate  of  Hoyt,  44  Misc.  Eep.  76,  89  N.  Y.  Supp.  744,  payable  out 
of  the  capital  though  the  remainders  are  contingent. 

21  Matter  of  Babcock,  37  Misc.  Rep.  445,  75  N.  Y.  Supp.  926,  affirmed, 
81  App.  Div.  645,  81  N.  Y.  Supp.  1117. 


132  INHERITANCE  TAXATION. 

a  life  beneficiary  was  given  a  power  of  appointment, 
the  estate  in  remainder  was  not  taxable  until  the  time 
arrived  for  the  exercise  of  the  power." 

In  still  another  instance  where  a  remainder  was 
limited  to  children  of  the  life  tenant,  or  her  appointees 
by  will,  and  it  did  not  appear  that  she  had  any  chil- 
dren, it  was  held  that  the  remainder  was  not  presently 
subject  to  the  transfer  tax,  since  no  transfer,  defeasible 
or  otherwise,  had  yet  been  made.23 

One  of  the  provisions  of  the  New  York  statute,  as 
amended  in  1901,  reads:  "Estates  in  expectancy  which 
are  contingent  or  defeasible  (and  in  which  proceed- 
ings for  the  determination  of  the  tax  have  not  been 
taken  or  where  the  taxation  thereof  has  been  held  in 
abeyance)  shall  be  appraised  at  their  full,  undimin- 
ished  value  when  the  persons  entitled  thereto  shall 
come  into  the  beneficial  enjoyment  or  possession 
thereof,  without  diminution  for  or  on  account  of  any 
valuation  theretofore  made  of  the  particular  estates 
for  purposes  of  taxation,  upon  which  said  estates  in 
expectancy  may  have  been  limited."  This  language 
indicates  a  legislative  intention  to  make  the  statute 
retrospective,  and  accordingly  it  has  been  decided  that 
the  fact  that  an  appraisal  of  an  estate  for  the  transfer 
tax  was  made  in  1891  does  not  entitle  the  owners  of 
contingent  or  defeasible  estates  in  expectancy  which 
were  created  by  the  will  of  the  decedent,  but  which 
did  not  vest  in  beneficial  enjoyment  until  1902,  to  pay 
the  tax  on  their  shares  upon  the  values  as  determined 
in  1891.  A  new  appraisal  thereof  is  necessary.  Since 
1901  the  New  York  statute  has  been  several  times 
amended.23* 

22  Matter  of  Howe,  86  App.  Div.  286,  83  N.  Y.  Supp.  825,  affirmed, 
176  N.  Y.  570,  68  N.  E.  1118;  Estate  of  Burgess  (N.  Y.),  97  N.  E.  591. 

23  Matter  of  Clarke,  39  Misc.  Eep.  73,  78  N.  Y.  Supp.  869. 

"*  Estate  of  Hosack,  39  Misc.  Eep.  130,  78  N.  Y.  Supp.  983.  For 
other  decisions  applying  the  statute  as  thus  amended,  see  Estate  of 


LIFE  ESTATES,  REMAINDERS,  AND  CONTINGENT  INTERESTS.      133 

§  94.  Future  Contingent  Estates — Illinois  Rule. — 
In  Illinois  somewhat  the  same  view  is  taken  in  tax- 
ing future  contingent  interests  as  formerly  prevailed  in 
New  York.  To  quote  from  the  supreme  court:  "The 
tax  imposed  by  section  1  of  our  statute  is  fixed  upon 
the  'clear  market  value  of  the  property  received  by 
each  person'  at  the  prescribed. rate — that  is,  as  shown 
by  the  context,  the  clear  market  value  of  the  beneficial 
interest  so  received.  Surely,  by  such  language  it  was 
not  intended  by  the  legislature  that  the  courts  should 
undertake  to  ascertain  the  clear  market  value  of  a 
mere  possible  interest  which,  from  its  very  nature, 
could  not  have  any  market  value,  and  which,  for  all 
practical  purposes,  such  as  taxation,  is  incapable  of 
valuation.  The  courts,  in  order  to  enforce  the  immedi- 
ate collection  of  such  taxes,  as  the  statute  seems  to 
contemplate  shall  be  done,  cannot  change  the  tax  from 
one  on  succession  to  one  on  property;  nor  can  they 
classify  such  remote  and  contingent  interests,  and  fix 
the  tax  or  rate  of  tax  upon  the  whole  class,  as  possibly 
the  law-making  power  might  do  or  provide  for.  No 
other  course  is  left  open  in  the  practical  administra- 
tion of  the  statute  than  to  postpone,  as  was  done  in 
this  case,  the  assessing  and  collecting  of  the  tax  upon 
such  remote  and  contingent  interests  as  are  incapable 
of  valuation  and  as  to  which  the  rate  and  the  exemp- 
tions cannot  be  determined.  It  is  apparent  that  in 
many  cases  the  tax  on  remainders,  mentioned  in  sec- 
tion 2  as  becoming  immediately  due  and  payable,  can 
be  immediately  ascertained  and  collected;  but  in  other 
cases,  while,  in  contemplation  of  the  statute,  they  are 
due  and  payable  and  remain  a  lien  on  the  property, 
their  payment  cannot  be  enforced  until  the  amount  can 
be  determined  by  the  happening  of  the  event  or  the 

Connoly,  38  Misc.  Rep.  533,  77  N.  Y.  Supp.  1113;  Estate  of  Goelet,  78 
N.  Y.  Supp.  47;  Estate  of  Naylor,  120  App.  Div.  738,  106  N.  Y.  Supp. 
667,  affirmed,  189  N.  Y.  556,  82  N.  E.  1129. 


134  INHERITANCE  TAXATION. 

fulfillment  of  the  conditions  upon  which  the  beneficial 
estate  itself  is  made  to  depend.  This  construction  of 
the  statute  leads  to  its  broadest,  fairest  and  fullest 
enforcement,  while  to  so  construe  it  as  to  require  the 
fixing  and  collecting  of  the  tax,  immediately  upon  the 
death  of  the  donor,  upon  all  interests  in  property 
passing  or  to  pass  upon  any  contingency,  would  em- 
barrass, and  for  practical  purposes  might  have  the 
effect  to  defeat,  the  full  operation  the  statute  was  in- 
tended to  have. ' ' " 

This  doctrine  is  affirmed  by  the  Illinois  court  in  a 
subsequent  case,  where  it  is  decided  that  if  the  person 
ultimately  entitled  to  the  beneficial  interest  in  a  re- 
mainder cannot  be  identified,  or  the  proportion  thereof 
to  which  he  will  succeed  cannot  be  determined,  the 
imposition  of  the  inheritance  tax  must  be  postponed 
until  such  matters  can  be  definitely  understood.  The 
condition  contemplated  by  the  statute,  observes  the 
court,  that  will  authorize  the  enforcement  of  the  tax, 
is  one  of  practical  and  actual  ownership — the  posses- 
sion of  the  title  to  something  that  can  be  conveyed. 
The  right  to  succeed,  when  for  all  practical  purposes 
a  myth,  is  not  subject  to  taxation,  for  taxation  is  in- 
tensely real  to  the  taxpayer  and  should  not  be  levied 

z*  Billings  v.  People,  189  HI.  472,  59  L.  R.  A.  807,  59  N.  E.  798, 
affirmed  in  188  TJ.  S.  97,  47  L.  Ed.  400,  23  Sup.  Ct.  Rep.  272,  and  ap- 
proved in  Vanderbilt  v.  Eidman,  196  U.  S.  480,  49  L.  Ed.  563,  25  Sup. 
Ct.  Rep.  331.  According  to  the  Billings  case,  the  tax  on  remainders  under 
a  will  giving  specified  persons  life  estates  with  remainders  over  in  case 
such  person  should  die  leaving  no  children  is  not  presently  payable  on 
the  death  of  the  testator,  notwithstanding  the  statute  provides  that  the 
value  of  the  property  shall  be  immediately  appraised,  and,  after  deduct- 
ing the  value  of  the  life  estate,  the  tax  on  the  remainder  shall  be  im- 
mediately due  and  payable,  as  the  reversionary  interests  are  insusceptible 
of  valuation  and  the  literal  language  of  the  statute  must  yield  to  reason- 
able interpretation. 

It  is  stated  in  Ayers  v.  Chicago  Title  etc.  Co.,  187  HI.  42,  58  N.  E. 
318,  that  the  tax  on  a  remainder,  whether  vested  or  contingent,  is  due 
and  payable  upon  the  death  of  the  testator,  unless  the  remainderman 
elects  to  defer  payment  by  giving  bond. 


LIFE  ESTATES,  REMAINDERS,  AND  CONTINGENT  INTERESTS.      135 

upon  that  which  is  unreal.  If  the  estates  are  contin- 
gent, they  cannot  be  taxed  until  they  are  vested;  if 
they  are  now  vested,  but  are  subject  to  an  estate  for 
years  and  moreover  subject  to  defeasance,  they  cannot 
be  taxed  until  they  become  indefeasible;  and  if  they 
are  executory  devises,  they  cannot  be  taxed  until  the 
persons  who  will  sometime  be  beneficially  entitled 
thereto  are  ascertained.  When  the  basis  of  the  tax, 
the  rate,  and  the  exemption,  if  any,  cannot  be  fixed, 
the  tax  itself  cannot  be  fixed.  No  other  course  is  left 
open,  in  the  practical  administration  of  the  statute, 
than  to  postpone  the  assessing  and  collecting  of  the 
tax  upcn  such  remote  and  contingent  interests  as  are 
incapable  of  valuation,  and  as  to  which  the  rate  and 
the  exemptions  cannot  be  determined.  The  state  will 
then  get  the  tax  when  the  remainderman  gets  his  prop- 
erty. The  right  to  impose  the  tax  presently  depends, 
not  upon  the  character  of  the  estate  devised,  with  ref- 
erence to  its  being  a  contingent  or  vested  remainder, 
but  upon  the  question  whether  the  person  who  is  now, 
or  will  ultimately  be,  entitled  to  a  beneficial  interest 
in  the  remainder  can  be  now  identified,  and  whether 
the  proportion  thereof  to  which  he  will  succeed  can 
be  now  determined.25 

In  a  still  later  Illinois  case  on  this  question  the  de- 
cisions announcing  the  above  doctrine  are  approvingly 
cited,  and  the  court,  in  defining  the  term  "expecta- 

"  People  v.  McCormick,  208  111.  437,  64  L.  B.  A.  775,  70  N.  E.  350. 
According  to  this  case,  the  inheritance  tax  cannot  be  assessed  at  the 
death  of  the  testator  upon  the  corpus  of  the  estate  when  property  is 
devised  in  trust  which  shall  continue  for  a  period  of  twenty  years,  during 
which  time  annuities  shall  be  paid  to  certain  persons  named,  among  whom 
the  estate  shall  be  distributed  at  the  expiration  of  that  period  if  they 
are  alive  at  that  time,  and,  if  they  are  not  alive,  among  persons  whom 
they  shall  appoint  and  certain  persons  named  by  the  testator,  the  statute 
authorizing  a  tax  against  the  person  who  "shall  become  beneficially 
entitled,  in  possession  or  expectation,  to  any  property  or  income  thereof," 
where  the  tax  rate  differs  according  to  the  relationship  to  the  testator  of 
the  person  who  ultimately  becomes  entitled  to  the  property. 


136  INHERITANCE  TAXATION. 

tion"  as  used  in  the  statute,  adopts  this  language 
from  one  of  the  previous  cases:  "An  ordinary  vested 
remainder,  not  subject  to  any  condition  or  contin- 
gency, as  where  the  property  is  given  to  A  for  life 
with  remainder  to  B,  is,  under  the  statute,  immediately 
taxable  as  the  property  of  B  upon  the  death  of  the 
testator,  because  there  the  estate  is  immediately  vested 
in  interest  in  the  remainderman,  his  heirs  and  assigns. 
Nothing  can  defeat  it.  B's  right  is  absolute.  His 
deed  will  transfer  the  property.  An  execution  against 
him  and  sale  thereunder  will  convey  it.  His  death 
cannot  affect  it.  He  is  beneficially  entitled  to  it  'in 
expectation.'  This  term  'expectation,'  as  used  in  our 
statute,  has  reference  only  to  possession.  The  lan- 
guage is,  'by  reason  whereof  any  person  ....  shall 
become  beneficially  entitled,  in  possession  or  expecta- 
tion, to  any  property  or  income  thereof.'  The  term 
'expectation'  is  used,  not  to  denote  an  expectation  of 
becoming  vested  both  with  the  title  and  the  posses- 
sion where  neither  is  now  vested,  but  to  denote  a  con- 
dition where  the  title  is  vested  and  the  possession  is 
deferred.  The  term  'in  expectation'  is  used  in  con- 
tradistinction to  'in  possession.'  Both  contemplate  a 
title  vested  and  indefeasible,  but  in  one  instance  the 
right  of  enjoyment  is  immediate,  'in  possession';  in  the 
other,  it  is  postponed,  'in  expectation.'  As  used  in 
this  statute,  these  words  last  quoted  refer  to  the  fu- 
ture possession  of  an  estate  now  vested  which  is  sub- 
ject to  the  immediate  enjoyment  of  another. ' ' 26 

§  95.  Future  Contingent  Estates — Minnesota  Rule. 
The  view  formerly  prevailing  in  New  York  has  also 

"  Estate  of  Kingman,  220  HI.  563,  5  Ann.  Gas.  234,  77  N.  E.  135. 
According  to  this  case  the  value  of  the  estate  for  years  should  not  be 
deducted  from  the  value  of  the  remainder  and  the  inheritance  tax  ex- 
tended on  the  balance  only,  where  the  will,  after  it  creates  a  trust  for  ten 
years,  directs  the  estate  to  be  divided  between  the  testator's  wife  and 
children. 


LIFE  ESTATES,  REMAINDERS,  AND  CONTINGENT  INTERESTS.      137 

been  adopted  in  Minnesota.  To  quote  from  a  recent 
decision  by  the  supreme  court  of  that  state:  "By  the 
express  provisions  of  the  provisos  to  sections  3  and  15, 
respectively,  a  tax  upon  any  devise,  bequest,  legacy,  or 
gift,  which  is  limited,  conditional,  dependent,  or  de- 
terminable  upon  the  happening  of  any  contingency 
or  future  event,  so  that  the  true  value  thereof  cannot 
be  presently  ascertained,  accrues  and  becomes  pay- 
able only  when  the  beneficiary  is  entitled  to  the  pos- 
session or  enjoyment  thereof.  The  language  of  the 
statute  is  so  specific  that  its  meaning  cannot  be  made 
clearer  by  any  extended  discussion  of  its  terms.  In 
the  case  of  Estate  of  Hoffman,27  similar  provisions  of 
the  inheritance  tax  law  of  the  state  of  New  York  were 
so  construed,  and  it  was  held  that  legacies  which 
vested  only  upon  the  happening  of  some  uncertain 
future  event,  or,  if  vested,  were  liable  to  be  devested, 
were  not  taxable  until  the  contingencies  had  passed  or 
been  fulfilled  and  the  right  to  succeed  to  the  property 
became  absolute. ' ' 28 

In  that  case  M  by  his  will  gave  the  residue  of  his 
estate  to  trustees  to  be  invested,  and  directed  them 
to  pay  semi-annually  the  net  income  therefrom  to  B 
during  the  time  the  estate  should  remain  in  their 
hands,  and  to  pay  and  deliver  the  corpus  of  the  estate 
to  him  in  four  equal  installments,  the  first  one  to  be 
turned  over  to  him  when  he  attained  the  age  of  twenty- 
five  years,  and  the  others,  in  their  order,  when  he 
reached  the  age  of  thirty,  thirty-five,  and  forty  years 
respectively.  The  will,  in  the  event  of  B's  death  be- 
fore he  received  the  whole  or  any  part  of  the  estate, 
gave  the  balance  remaining  in  the  hands  of  the  trus- 
tees to  other  legatees.  It  was  held  that  a  tax  on  a 
legacy  which  vests  only  upon  the  happening  of  some 

at  Estate  o"f  Hoffman,  143  N.  Y.  327,  38  N.  E.  311. 

*s  State  v.  Probate  Court,  100  Minn.  192,  11.0  N.  W.  865. 


138  INHERITANCE  TAXATION. 

uncertain  event,  so  that  the  true  value  thereof  cannot 
be  presently  ascertained,  accrues  and  becomes  payable 
only  when  the  beneficiary  is  entitled  to  the  possession 
or  enjoyment  thereof;  and  that  the  transfer  of  the 
residue  of  the  estate  to  the  trustees  was  not  taxable, 
but  a  tax  would  accrue  and  become  payable  from  time 
to  time  on  the  income  and  on  the  corpus  as  B  might 
become  entitled  to  them  or  any  part  thereof.29 

In  a  later  decision  the  Minnesota  court  holds  that 
the  tax  becomes  due  and  payable  when  the  beneficiary 
enters  into  actual  possession  and  enjoyment  of  any 
portion  of  the  bequest  which  exceeds  in  value  the  stat- 
utory exemption;  and  that  the  tax  so  accruing  must 
be  computed  upon  the  value,  at  the  time  of  the  de- 
cedent's death,  of  the  right  to  receive  the  amount 
actually  paid  upon  the  date  of  its  payment.  Says 
the  court,  "while  we  de  not  find  this  particular  ques- 
tion, namely,  the  right  to  assess  and  collect  the  tax 
upon  installments,  discussed  in  the  decisions  of  other 
states  to  which  we  have  been  referred,  we  think  our 
holding  is  in  harmony  with  the  reasons  upon  which 

those  decisions  are  based Generally  speaking, 

the  cases  have  been  with  reference  to  the  possibility 
of  valuing  an  estate  to  commence  in  the  future  and 
upon  the  happening  of  some  contingency.  We  fully 
agree  with  the  proposition  that  it  is  impossible  to 
value  an  estate  so  long  as  it  is  impossible  to  say 
when  it  will  begin  or  who  will  be  its  beneficiary. 
Thus,  in  the  present  case,  it  would  be  impossible  to 
say  now  the  value  of  the  entire  inheritance  which  may 
ultimately  go  to  the  sons  of  the  deceased  or  their 
heirs;  but,  upon  the  other  hand,  there  is  no  difficulty 
in  arriving  at  the  value  of  what  any  one  of  the  benefi- 
ciaries has  already  received. ' ' 29a 

"  State  v.  Probate  Court,  100  Minn.  192,  110  N.  W.  865. 
"»  State  v.  Probate  Court,  112  Minn.  279,  128  N.  W.  18. 


LIFE  ESTATES,  REMAINDERS,  AND  CONTINGENT  INTERESTS.      139 

§  96.  Future  Contingent  Estates — Pennsylvania 
Rule. — The  former  New  York  rule  has  also  been  ap- 
proved in  Pennsylvania.  The  supreme  court  of  the 
latter  state  adopts  this  language  from  the  court  of 
appeals  of  the  former  state:  "It  is  not  to  be  assumed 
that  the  legislature  intended  to  compel  the  citizen  to 
pay  a  tax  upon  an  interest  he  may  never  receive,  and 
the  reasonable  construction  of  this  statute  leads  to  no 
such  unjust  result.  It  does  not  follow  because  the 
legislature  taxes  persons  beneficially  entitled  to  prop- 
erty or  income,  in  possession  or  in  expectancy,  that  a 
tax  was  thereby  imposed  upon  an  interest  that  may 
never  vest;  until  that  time  arrives  the  power  to  tax 
does  not  exist."  The  Pennsylvania  court  then  decides 
that  where  a  testator  leaves  his  whole  estate,  includ- 
ing mining  leases,  to  trustees  to  pay  the  income  to  his 
wife  and  after  her  death  to  various  nephews  and 
nieces,  and  from  the  terms  of  the  will  it  cannot  be 
presently  ascertained  what  persons  will  actually  come 
into  possession  of  the  estate  upon  the  death  of  the 
widow,  nor  can  the  value  of  the  estate  at  that  time 
be  determined,  the  commonwealth  cannot  compel  any 
person  to  enter  security  to  pay  the  tax,  but  must  wait 
until  the  death  of  the  widow,  when  the  tax  will  be 
deducted  from  the  shares  of  the  persons  then  entitled 
to  the  estate.80 

Under  the  Pennsylvania  statute  of  1887,  the  tax 
on  estates  in  remainders  "shall  not  be  payable  until 
the  person  liable  for  the  same  shall  come  into  actual 
possession  of  such  estate  by  the  termination  of  the 
estate  for  life  or  years;  and  the  tax  shall  be  assessed 

»o  Estate  of  Coxe,  193  Pa.  100,  44  Atl.  256. 

See,  also,  Appeal  of  James,  2  Del.  Co.  Rep.  164;  Estate  of  Willing,  11 
Phila.  119;  Estate  of  Wharton,  14  Phila.  279;  Estate  of  Bispham,  6  Pa. 
Co.  Rep.  459;  Estate  of  Van  Storch,  7  Pa,  Dist.  Rep.  204. 

The  early  statutes  of  Pennsylvania  on  this  question  are  interpreted  in 
Appeal  of  Mellon,  114  Pa.  564,  8  Atl.  183;  Commonwealth  v.  Eckert,  53 
Pa.  102;  Commonwealth  v.  Smith,  20  Pa.  100. 


140  INHERITANCE  TAXATION. 

upon  the  value  of  the  estate  at  the  time  the  right  of 
possession  accrues  to  the  owner  as  aforesaid.  But 
the  words  'shall  not  be  payable'  mean  only  'shall  not 
be  demandable'  by  the  estate,  as  the  right  of  the  re- 
maindermen to  pay  sooner  is  expressly  given  in  the 
proviso  ....  that  the  owner  shall  have  the  right  to 
pay  the  tax  at  any  time  prior  to  his  coming  into  pos- 
session, and  in  such  cases  the  tax  shall  be  assessed 
upon  the  value  of  the  estate  at  the  time  of  the  payment 
of  the  tax,  after  deducting  the  value  of  the  life  estate 
or  estates  for  years."  And  it  has  been  held  that 
where  a  testator  directs  his  executors  to  pay  "all  the 
collateral  inheritance  tax  on  all  the  devises,  bequests 
and  legacies  contained  in  this  will  as  soon  after  my 
decease  as  the  same  can  be  conveniently  done,"  and 
the  executors  pay  the  tax  on  the  entire  estate  at  its 
then  value,  the  commonwealth  cannot,  after  the  death 
of  the  life  tenant  and  after  the  estate  has  increased  in 
value,  impose  any  tax  upon  the  remaindermen;  and 
that  where  the  executor  has  paid  the  tax  on  the  whole 
estate  passing  in  possession  or  remainder,  no  appraise- 
ment need  be  made  of  the  value  of  the  life  estate  and 
the  remainders.31 

It  has  also  been  affirmed  in  Pennsylvania  that  where 
the  real  estate  of  a  decedent  passes  under  the  intes- 
tate laws  to  his  parents  for  life,  who  are  exempt  from 
inheritance  taxation,  and  at  their  death  goes  to  col- 
lateral heirs,  the  commonwealth  is  entitled  to  the  col- 
lateral inheritance  tax  upon  the  appraised  value  of 
the  realty  less  the  amount  of  the  decedent's  debts  un- 
paid by  his  personal  estate.  It  is  apparent,  the  court 
remarks,  that  in  estates  liable  to  the  collateral  tax 
the  state  is  entitled  to  a  tax  on  the  entire  estate;  that 
when  the  tenant  for  life  or  for  years,  being  parent  or 
lineal  descendant,  is  exempt  from  liability,  the  whole 

>i  Estate  of  De  Borbon,  211  Pa.  623,  61  Atl.  244. 


LIFE  ESTATES,  REMAINDERS,  AND  CONTINGENT  INTERESTS.       141 

tax  on  the  entire  estate  must  be  paid  by  the  tenants 
in  remainder;  that  in  such  cases  the  time  of  payment 
is  postponed  until  the  estate  comes  into  actual  posses- 
sion of  the  tenant  liable;  that  nevertheless  if  such 
tenant  elect  in  anticipation  to  pay  at  the  death  of 
the  decedent,  the  tax  is  assessable  on  the  then  valua- 
tion of  the  entire  estate,  less  the  value  of  the  estate  for 
life  or  years;  that  is,  when  the  tenant  of  the  inter- 
mediate estate  is  not  liable,  the  tenant  in  remainder 
has  the  election  either  to  pay  the  tax  on  the  entire 
estate  with  interest,  when  he  comes  into  actual  posses- 
sion, or  to  pay  at  the  death  of  the  decedent  the  tax  on 
the  then  net  valuation  of  the  estate  in  remainder;  and 
in  consideration  of  such  anticipated  payment,  her 
right  to  a  tax  on  the  intermediate-  estate  is  waived  by 
the  commonwealth.82 

§  97.  Future  Contingent  Estates — Wisconsin  Rule. 
In  Wisconsin,  where  the  fair  market  value  of  estates 
or  interests  therein  which  are  limited,  conditioned, 
dependent,  or  determinable  upon  the  happening  of  any 
contingency  or  future  event,  and  cannot  by  reason 
thereof  be  ascertained  at  the  time  of  the  transfer,  the 
tax  becomes  due  and  payable  when  the  beneficiary  shall 
come  into  the  actual  possession  and  enjoyment  thereof. 
This  does  not  operate  to  postpone  the  imposition  of  the 
tax  on  the  transfer  beyond  the  time  of  the  death  of  the 
transferrer,  for  the  tax  comes  into  existence  at  the  time 
of  his  death  and  remains  a  lien  on  the  property  until 
paid ;  but  since  the  fair  market  value  thereof  is  not  then 
ascertainable,  it  operates  to  postpone  payment  to  the 
time  when  such  value  is  ascertainable,  namely,  when 
the  contingency  happens  which  gives  the  beneficiary 
the  actual  possession  or  enjoyment  of  the  property. 
An  objection  to  this  rule  has  been  raised  on  the  ground 

M  Commonwealth's  Appeal,  127  Pa.  438,  17  Atl.  1094. 


142  INHERITANCE  TAXATION. 

that  it  imposes  a  tax  on  transfers  limited  to  death 
on  contingencies  which  may  never  happen,  to  persons 
not  in  being  or  ascertainable,  or  on  transfers  of  de- 
feasible estates  which  may  never  go  to  the  persons 
who  are  taxed.  But  this  objection  is  without  merit, 
for,  although  the  tax  is  imposed  at  the  time  of  the 
devolution  of  the  property,  which  is  at  the  time  of  the 
transferor's  death,  the  law  does  not  enforce  assess- 
ment and  payment  of  the  tax  on  interests  or  estates  not 
vested  or  on  those  whose  value  cannot  be  ascertained 
by  reason  of  uncertainties  and  contingencies.  Pay- 
ment of  a  tax  on  such  transfers  is  postponed  until  the 
beneficiary  comes  into  the  actual  possession  or  enjoy- 
ment thereof.  And  if  present  owners  of  defeasible 
estates  are  required  to  pay  the  tax  on  the  whole  trans- 
fer, provision  is  made  for  reimbursing  them  should  it 
happen  that  such  estates  should  be  abridged,  defeated 
or  diminished.33 

§  98.  Future  Contingent  Estates — Tennessee  Rule. 
Under  the  Tennessee  statute  the  collateral  inheritance 
tax  does  not  become  collectible,  in  the  case  of  contin- 
gent remainders,  until  the  person  liable  therefor  comes 
into  the  possession  and  beneficial  enjoyment  of  the 
property  after  the  termination  of  the  life  estate,  and 
then  the  tax  is  assessed  upon  the  value  at  the  time  the 
right  of  possession  accrues  to  the  owner,  provided  that 
he  may  pay  before  coming  into  possession  upon  a  valu- 
ation at  that  time,  deducting  the  value  of  the  life  estate. 
The  termination,  however,  of  the  estate  for  life  is  not 
necessarily  postponed  to  the  death  of  the  life  tenant; 
the  life  estate  is  terminated  where  the  estate  in  re- 
mainder is  conveyed  to  the  life  tenant,  and  the  tax 
then  becomes  due.  And  the  life  tenant  is  liable  for 
the  payment  of  the  tax,  since  by  virtue  of  the  convey- 

ss  State  v.  Pabst,  139  Wis.  561,  121  N.  W.  351. 


LIFE  ESTATES,  REMAINDERS,  AND  CONTINGENT  INTERESTS.      143 

ance  there  is  a  merger  of  the  two  estates  in  a  fee  as 
to  which  he  at  once  comes  into  the  actual  ownership, 
possession  and  beneficial  enjoyment.84 

§  99.  Future  Contingent  Interests — Massachusetts 
Rule. — Collateral  legacies  of  future  and  contingent 
interests  are  taxable  under  the  Massachusetts  stat- 
ute; and  the  tax  is  to  be  paid  when  the  contingency 
occurs,  and  the  determination  of  the  value  of  the  future 
interest  is  to  be  postponed  until  the  happening  of  the 
event.  It  is  then  valued  as  of  the  time  of  the  death 
of  the  testator.35  The  Massachusetts  statute  of  1902, 
providing  that  in  all  cases  where  there  has  been  or 
shall  be  a  devise,  bequest,  or  descent  liable  to  the 
collateral  inheritance  tax,  to  come  into  actual  enjoy- 
ment after  the  expiration  of  one  or  more  life  estates 
or  a  term  of  years,  the  tax  on  such  property  shall  not 
be  payable  until  the  persons  entitled  thereto  shall 
come  into  actual  possession  of  the  property,  and  the 
tax  shall  be  assessed  upon  the  value  of  the  property 
at  the  time  .when  the  right  of  possession  accrues  to 
the  persons  entitled  thereto,  and  they  shall  pay  the 
tax  upon  coming  into  possession — is  retrospective,  not 
merely  prospective,  as  to  all  estates  where  the  tax 
has  not  been  paid;  and  it  follows  the  suggestion  of 
Justice  Field,  made  while  construing  a  prior  law,  that 
"  perhaps  a  simpler  way  than  that  prescribed  by  stat- 
ute would  have  been  to  levy  the  tax  at  the  end  of 

s*  Harrison  v.  Johnston,  109  Tenn.  245,  70  S.  W.  414.  See,  also, 
Bailey  v.  Drane,  96  Tenn.  16,  33  S.  W.  573. 

SB  Howe  v.  Howe,  179  Mass.  546,  55  L.  B.  A.  626,  61  N.  E.  225.  The 
provisions  of  the  Massachusetts  statute  that  the  collateral  succession  tax 
on  property  passing  after  the  expiration  of  a  life  estate  shall  not  be 
payable  until  the  person  entitled  thereto  shall  come  into  actual  pos- 
session, etc.,  is  considered  in  Dow  v.  Abbott,  197  Mass.  283,  84  N.  E.  96. 

The  constitutionality  of  the  Massachusetts  statute  is  upheld  in  At- 
torney General  v.  Stone,  209  Mass.  186,  95  N.  E.  395. 


144  INHERITANCE  TAXATION. 

the  life  estate  upon  the  whole  of  the  fund  to  be  paid 
to  the  legatee  in  remainder. ' ' 88 

The  Massachusetts  court  has  pointed  out  that  an 
interest  in  property  passes  by  will,  within  the  mean- 
ing of  the  inheritance  tax,  although  its  destination  is, 
by  the  will,  made  subject  to  the  appointment  of  third 
persons." 

§  100.  Future  Contingent  Estates — United  States 
Rule. — The  supreme  court  of  the  United  States,  in  con- 
struing the  war  revenue  act  of  1898  in  its  application 
to  contingent  future  estates,  has  adopted  the  view 
taken  in  the  Illinois  and  the  earlier  New  York  de- 
cisions, to  the  effect  that  on  such  estates  the  inherit- 
ance tax  is  postponed  to  the  time  when  the  beneficial 
owner  comes  into  the  possession  or  enjoyment  of  the 
property;  and  has  decided  that  the  interest  of  a 
residuary  legatee,  conditioned  on  his  reaching  a  speci- 
fied age,  could  not  be  deemed  taxable  before  the  hap- 
pening of  the  contingency.  Said  Justice  White:  "In 
view  of  the  express  provisions  of  the  statute  as  to 
possession  or  enjoyment  and  beneficial  interests  and 
clear  value,  and  of  the  absence  of  any  express  lan- 
guage exhibiting  an  intention  to  tax  a  mere  technically 
vested  interest  in  a  case  where  the  right  to  possession 
or  enjoyment  was  subordinated  to  an  uncertain  con- 
tingency, it  would,  we  think,  be  doing  violence  to  the 
statute  to  construe  it  as  taxing  such  an  interest  before 
the  period  when  possession  or  enjoyment  had  attached. 
And  such  is  the  construction  which  has  been  affixed 
to  some  state  statutes,  the  text  of  which  lent  them- 
selves more  strongly  to  the  construction  that  it  was 
the  intention  to  subject  to  immediate  taxation  merely 
technical  interests,  without  regard  to  a  present  right 

*«  Stevens  v.  Bradford,  185  Mass.  439,  70  N.  E.  425. 

"  Howe  v.  Howe,  179  Mass.  546,  55  L.  R.  A.  626,  61  N.  E.  225. 


LIFE  ESTATES,  REMAINDERS,  AND  CONTINGENT  INTERESTS.      145 

to  possess  or  enjoy."88  It  will  be  noticed  that  Jus- 
tice White,  in  speaking  of  " technically  vested"  in- 
terests, was  addressing  attention  to  estates  not  vested 
in  fact,  but  which  the  law,  for  purposes  of  convenience, 
treats  as  vested.39 

§  101.    Person  or  Fund   Liable   for   Tax. — It  has 

already  been  seen,  under  the  New  York  statute  of 
1899  and  1900,  that  transfer  taxes  imposed  upon  trust 
estates  and  estates  for  life  and  in  remainder,  created 
by  will,  are  payable  forthwith  out  of  the  property 

w  Vanderbilt  v.  Eidman,  196  U.  S.  480,  49  L.  Ed.  563,  25  Sup.  Ct. 
Kep.  331,  citing  In  re  Curtis,  142  N.  Y.  219,  36  N.  E.  887;  In  re  Roose- 
velt, 143  N.  Y.  120,  25  L.  B.  A.  695,  3«  N.  E.  281 ;  In  re  Hoffman,  143 
N.  Y.  327,  38  N.  E.  311;  Billings  v.  People,  189  111.  472,  59  L.  R.  A. 
807,  59  N.  E.  798;  Howe  v.  Howe,  179  Mass.  546,  55  L.  R.  A.  626,  61  N. 
E.  225. 

The  doctrine  of  the  above  Vanderbilt  case  has  been  applied  in  Land 
Trust  etc.  Co.  v.  McCoach,  129  Fed.  901,  64  C.  C.  A.  333;  Philadelphia 
Trust  etc.  Co.  v.  McCoach,  129  Fed.  906,  64  C.  C.  A.  338;  Herold  v. 
Shanley,  146  Fed.  20,  76  C.  C.  A.  478;  Disston  v.  McClain,  147  Fed.  114, 
77  C.  C.  A.  340;  Union  Trust  Co.  v.  Lynch,  148-  Fed.  49,  affirmed,  164 
Fed.  161,  90  C.  C.  A.  147;  Westhus  v.  Union  Trust  Co.,  164  Fed.  795,  90 
C.  C.  A.  441 ;  Farrell  v.  United  States,  167  Fed.  639 ;  Chouteau  v.  Allen, 
170  Fed.  412,  95  C.  C.  A.  582. 

The  Vanderbilt  case  has  recently  been  distinguished  in  Unked  States 
v.  Fidelity  Trust  Co.,  222  U.  S.  158,  56  L.  Ed. ,  32  Sup.  Ct.  Rep.  59. 

In  Heberton  v.  McLain,  135  Fed.  226,  it  is  decided  that  a  legacy  to  a 
daughter  "when  she  is  eighteen  years  old"  is  contingent,  and  not  sub- 
ject to  a  legacy  tax  under  section  29  of  the  war  revenue  act. 

This  act,  as  amended  in  1902  and  1907,  provides  that  no  tax  shall 
thereafter  be  assessed  or  imposed  on  any  contingent  beneficial  interest 
which  shall  not  have  become  absolutely  vested  in  possession  or  enjoy- 
ment prior  to  July  1,  1902. 

For  decisions  construing  former  United  States  revenue  acts  in  their 
application  to  contingent  future  interests,  see  Clapp  v.  Mason,  94  U.  S. 
589,  24  L.  Ed.  212;  Wright  v.  Blakeslee,  101  U.  S.  174,  25  L.  Ed.  1048; 
Mason  v.  Sargent,  104  U.  S.  689,  26  L.  Ed.  894;  United  States  v.  Hazard, 
8  Fed.  380. 

39  Title  Guarantee  &  Trust  Co.  v.  Ward,  164  Fed,  459,  465,  affirmed, 
184  Fed.  447. 
10 


146  INHERITANCE  TAXATION. 

transferred.40  Since  both  life  tenant  and  remainder- 
man take  as  a  matter  of  sovereign  favor,  neither  can 
complain  of  this  manner  of  payment.  The  life  tenant 
cannot  oppose  the  tax  because  the  principal  of  which 
he  is  entitled  to  the  use  is  thereby  diminished,  nor 
can  the  remainderman  resist  the  tax  on  the  ground 
that  he  may  never  come  into  the  possession  of  the 
property.41 

But  this  rule  prescribed  by  the  legislature  that  the 
tax  is  payable  forthwith  out  of  the  corpus  of  the  prop- 
erty is  not  in  accord  with  the  rule  formulated  by  the 
courts  in  the  absence  of  express  legislative  mandate, 
for  they  have  affirmed  that  where  a  testator  has  given 
the  income  of  a  fund  for  life,  and  the  principal  over 
at  the  death  of  the  life  tenant,  two  estates  are  thereby 
created  and  each  beneficiary  must  pay  his  tax.  The 
tax  of  the  life  tenant  is  payable  out  of  the  income, 
and  is  not  chargeable  against  the  principal  of  the 
fund,  which  is  thereby  kept  intact  for  the  benefit  of  the 
remaindermen,  who  are  liable  for  the  tax  on  the  re- 
mainder interests.42 

40  Estate  of  Vanderbilt,  172  N.  Y.  69,  64  N.  E.  782;  Estate  of  Tracy, 
179  N.  Y.  501,  72  N.  E.  519 ;  Estate  of  Bass,  57  Misc.  Eep.  531,  109  N. 
Y.  Supp.  1084;  Estate  of  Wilcox,  118  N.  Y.  Supp.  254. 

41  Estate  of  Bushnell,  172  N.  Y.  649,  65  N.  E.  1115. 

42  In  re  Johnson,  6  Dem.  Sur.  146;  Estate  of  Clarke,  5  N.  Y.  Supp. 
199;  In  re  Hoyt,  37  Misc.  R«p.  720,  76  N.  Y.  Supp.  504;  Estate  of  Mc- 
Mahon,  28  Misc.  Bep.  697,  60  N.  Y.  Supp.  64;  Estate  of  Hoyt,  37  Misc. 
Bep.  720,  76  N.  Y.  Supp.  504;  Estate  of  Christian,  18  Wkly.  Notes  Gas. 
(Pa.)  88;  Fitzgerald  v.  Rhode  Island  Hospital  Trust  Co.,  24  B.  I.  59,  52 
Atl.  814.     In  this  last  case  the  question  is  thoroughly  considered.     In 
this  connection,  see,  also,  section  90,  ante. 

Under  a  will  giving  a  life  estate  to  the  widow  of  the  testator,  with 
remainder  to  his  daughter,  the  daughter  takes  through  the  will,  not 
through  the  life  tenant;  and  if  the  transfer  tax  has  been  paid  on  the 
testator's  estate,  no  further  tax  can  be  collected  on  the  falling  of  the 
remainder:  Estate  of  Whitney,  69  Misc.  Rep.  131,  124  N.  Y.  Supp.  909. 

According  to  Estate  of  Brown,  208  Pa.  161,  57  Atl.  360,  where  the 
corpus  of  an  estate  is  committed  to  the  executors  in  trust  to  collect  the 
income,  "and  after  taking  any  and  all  necessary  expenses,  to  divide  the 
said  net  income  in  equal  shares  among"  designated  persons  named  for 


LIFE  ESTATES,  REMAINDERS,  AND  CONTINGENT  INTERESTS.      147 

§  102.  Amount  of  Tax  on  Contingent  Remainder. — 
In  determining  the  amount  of  the  inheritance  tax  on 
contingent  remainders,  the  court  should  take  the  high- 
est amount  that  in  any  contingency  would  become 
liable  to  the  tax.43  The  tax  becomes  due  and  payable, 
it  has  recently  been  decided  in  Minnesota,  when  the 
beneficiary  enters  into  actual  possession  and  enjoy- 
ment of  any  portion  of  the  bequest  which  exceeds  the 
statutory  exemption,  that  is,  the  tax  may  be  assessed 
and  collected  on  installments;  and  the  tax  so  accruing 
must  be  computed  upon  the  value,  at  the  time  of  the 
decedent's  death,  of  the  right  to  receive  the  amount 
actually  paid  upon  the  date  of  its  payment.44 

§  103.  Law  Governing  Tax — Retrospective  Statute. 
The  question  which  law,  in  point  of  time,  governs  the 

life,  the  collateral  inheritance  tax,  New  York  state  transfer  tax,  and 
United  States  war  tax  are  not  payable  out  of  the  principal  of  the  estate, 
but  are  to  be  deducted  by  the  trustees  from  the  gross  income,  after 
which  the  net  income  is  to  be  divided  in  equal  shares  among  the  life 
tenants. 

«  People  v.  Byrd,  253  111.  223,  97  N.  E.  293.  Said  the  court  in  this 
case:  "A  possible  contingency  here  is  that  three  of  the  four  devisees 
named  may  die  before  the  widow,  leaving  no  issue.  In  that  contingency 
the  one  survivor  would  receive  all  of  the  estate,  for  the  reason  such  one 
would  be  the  only  representative  of  the  class  living  at  the  time  the  estate 
vests.  The  court  below  did  not  adopt  this  rule,  but  supposed  the  possible 
contingency  that  two  of  the  children  named  should  die  without  issue 
before  the  widow,  leaving  two  survivors  of  the  class  to  take  the  estate. 
The  court  then  divided  the  devise  equally  between  the  two  supposed  sur- 
vivors and  deducted  twenty  thousand  dollars  from  each  share  to  arrive 
at  the  amount  of  tax  due.  Under  the  rule  requiring  the  court  to  adopt 
the  highest  amount  that  in  any  contingency  can  pass,  the  amount  here 
was  subject  to  only  one  deduction  of  twenty  thousand  dollars.  No  case 
involving  the  construction  of  the  inheritance  tax  law  in  this  regard  has 
heretofore  come  before  this  court,  but  our  statute  in  this  respect  is 
identical  with  the  statute  of  New  York.  Section  230  of  the  New  York 
statute  (Consol.  Laws  1909,  c.  60)  has  been  construed  by  the  court  of 
appeals  of  New  York  in  accordance  with  the  views  herein  expressed:  In 
the  Matter  of  Vanderbilt,  172  N.  Y.  69,  64  N.  E.  782;  In  the  Matter  of 
Brez,  172  N.  Y.  609,  64  N.  E.  958." 
•  44  state  v.  Probate  Court,  112  Minn,  279,  128  N.  W.  18. 


148  INHERITANCE  TAXATION. 

imposition  of  inheritance  taxes  on  the  transfer  of  re- 
mainders is  one  on  which  the  authorities  are  some- 
what at  variance.  Some  courts  take  the  view  that  the 
law  in  force  at  the  time  of  the  death  of  the  donor 
determine*  whether  the  remaindermen  are  liable  for 
any  tax,  and,  if  they  are,  the  extent  of  the  liability; 
and,  moreover,  that  after  a  remainder  has  vested  free 
from  taxation  upon  his  death,  the  legislature  cannot, 
without  offending  constitutional  principles,  impose  a 
tax  to  take  effect  when  the  remaindermen  come  into 
possession  or  enjoyment  of  their  estate.  Other  courts, 
however,  take  the  view  that  the  privilege  of  succession 
is  not  fully  exercised  until  the  life  estate  is  terminated 
and  the  remainderman  comes  into  the  possession  or 
enjoyment  of  the  property;  and  that  until  that  time 
arrives  it  is  competent  for  the  legislature  to  change  the 
procedure  so  that  perhaps  the  tax  is  made  more  bur- 
densome than  it  would  have  been  under  the  law  in 
force  at  the  time  of  the  donor's  death,  or  even,  per- 
haps, to  impose  a  tax  where  none  at  all  existed  at 
the  time  of  such  death.** 

«  See  sec.  39,  ante. 


TRANSFERS  TO  TAKE  EFFECT   UPON  DEATH.  149 


CHAPTER  VII. 

TRANSFERS  IN  CONTEMPLATION  OF  OR  TO  TAKE 
EFFECT  UPON  DEATH. 

§  110.  Constitutionality  of  Statutes  Imposing  Tax. 

§  111.  Purpose  of  Statutes. 

§  112.  Intention  of  Donor  or  Grantor. 

§  113.  Consideration  for  Transfer,  in  General. 

§  114.  Consideration  of  Support  of  Grantor  or  Others. 

§  115.  Consideration  of  Services. 

§  116.  Situs  of  Property — Nonresidence. 

§  117.  Transfers  in  Contemplation  of  Death,  in  General. 

§  118.  Transfers  in  Contemplation  of  Death — Illustrations. 

§  119.  Determination  of  Taxability  of  Transfer. 

§  120.  Gifts  Inter  Vivos  or  Causa  Mortis. 

§  121.  Transfers  to  Take  Effect  at  Death. 

§  122.  Marriage  Settlements. 

§  123.  Agreements  to  Make  Will. 

§  124.  Transfers  in  Trust,  in  General. 

§  125.  Trusts — Esservation  of  Power  to  Revoke. 

§  126.  Trusts — Income  Payable  to  Transferees. 

§  110.  Constitutionality  of  Statutes  Imposing  Tax. 
Inheritance  tax  statutes  are  ordinarily  not  confined  to 
transfers  of  property  by  will  or  by  the  intestate  laws, 
but  also  embrace  transfers  made  in  contemplation  of 
the  death  of  the  transferrer  or  intended  to  take  effect 
in  possession  or  enjoyment  at  or  after  his  death.  The 
constitutionality  of  this  form  of  taxation  has  been 
assailed  on  the  ground  that  the  classification  singling 
out  such  transfers  for  taxation  is  unreasonable  and 
that  the  tax  in  some  cases  reaches  gifts  inter  vivos. 
These  constitutional  objections,  however,  have  been 
urged  in  vain.1  In  upholding  the  constitutionality  of 

i  Estate  of  Benton,  234  HI.  366,  14  Ann.  Cas.  107,  18  L.  B.  A.,  N.  S., 
458,  84  N.  E.  1026;  Estate  of  Keeney,  194  N.  Y.  281,  87  N.  E.  428; 
Appeal  of  Wright,  38  Pa.  507;  State  v.  Alston,  94  Tenn.  674,  28  L.  E. 
A.  178,  30  S.  W.  750. 

"We  think  that  there  are  sufficient  reasons,"  to  quote  from  "Estate  of 
Keeney,  194  N.  Y.  281,  87  N.  E.  428,  affirmed,  Keeney  v.  New  York,  222 


150  INHERITANCE  TAXATION. 

the  Massachusetts  law  the  supreme  court  of  that  state 
observed:  "We  see  no  difference  in  principle  between 
property  passing  by  a  deed  intended  to  take  effect  in 
possession  or  enjoyment  on  the  death  of  the  grantor 
and  property  passing  by  will.  In  either  case  it  is  the 
privilege  of  disposing  of  property  after  the  death  of 
the  grantor  or  testator  and  of  succeeding  to  it  which 
is  taxed,  though  the  amount  of  the  tax  is  determined 
by  the  value  of  the  property.  The  constitutionality  of 
the  law  in  regard  to  taxing  property  passing  by  will 
was  fully  considered  in  Minot  v.  Winthrop,2  and  that 
case,  we  think,  is  decisive  of  this. ' ' 8 

Transfers  to  take  effect  in  possession  or  enjoyment 
after  the  death  of  the  transferrer  are  sometimes  made 
with  the  design  of  evading  the  inheritance  tax.  But 
aside  from  any  evasion  of  the  law,  the  taxation  of 
such  transfers  may  be  placed  on  the  ground  that  the 
property  remains  substantially  that  of  the  transferrer 
during  his  lifetime,  and  does  not  actually  pass  to  the 
beneficiaries  until  his  death,  and  hence  the  transmission 

U.  S.  525,  56  L.  Ed. ,  32  Sup.  Ct.  Eep.  105,  "to  support  the  classifica- 
tion made  by  the  statute;  at  least  that  the  classification  cannot  be  said 
to  be  devoid  of  reasonable  ground  on  which  to  rest.  Inheritance  tax 
laws  have  been  very  generally  adopted  throughout  the  states  of  the 
Union.  A  substantial  part  of  the  revenue  necessary  to  support  their 
governments  is  now  derived  from  that  source.  A  not  wholly  unnatural 
desire  exists  among  owners  of  property  to  avoid  the  imposition  of  in- 
heritance taxes  upon  the  estates  they  may  leave,  so  that  such  estates  may 
pass  to  the  objects  of  their  bounty  unimpaired.  It  is  a  matter  of  common 
knowledge  that  for  this  purpose  trusts  or  other  conveyances  are  made 
whereby  the  grantor  reserves  to  himself  the  beneficial  enjoyment  of  his 
estate  during  life.  Were  it  not  for  the  provision  of  the  statute  which  is 
challenged,  it  is  clear  that  in  many  cases  the  estate  on  the  death  of  the 
grantor  would  pass  free  from  tax  to  the  same  persons  who  would  take  it 
had  the  grantor  made  a  will  or  died  intestate.  It  is  true  that  an  in- 
genious mind  may  devise  other  means  of  avoiding  an  inheritance  tax, 
but  the  one  commonly  used  is  a  transfer  with  reservation  of  a  life  estate. 
We  think  this  fact  justified  the  legislature  in  singling  out  this  class  of 
transfers  as  subject  to  a  special  tax." 

2  Minot  v.  Winthrop,  162  Mass.  113,  26  L.  B.  A.  259,  38  N.  E.  512. 

»  Crocker  v.  Shaw,  174  Mass.  266,  54  N.  E.  549. 


TRANSFERS   TO   TAKE   EFFECT   UPON   DEATH.  151 

is  essentially  similar  in  that  respect  to  a  devolution 
by  testacy  or  intestacy  upon  the  death  of  the  owner.4 

§  111.  Purpose  of  Statutes. — Without  a  statute  tax- 
ing transfers  made  in  contemplation  of  death  or  to 
take  effect  thereon,  it  is  very  clear  that  many  estates 
would  pass  free  from  taxation  to  the  same  persons  to 
whom  they  would  have  passed  had  the  grantor  or 
donor  made  a  will  or  died  intestate,  for  it  is  not  an 
entirely  unnatural  desire,  and  certainly  not  one  in- 
frequently indulged,  for  property  owners  to  attempt 
to  evade  the  inheritance  tax  and  transmit  estates  to 
the  objects  of  their  bounty  unimpaired;  and  even 
though  the  transfer  is  not  actuated  by  any  such  mo- 
tive, its  practical  effect,  so  far  as  the  public  revenue 
is  concerned,  is  the  same.  It  is  the  purpose  of  such 
statutes  to  preclude,  so  far  as  possible,  this  evasion 
of  taxation,  whether  with  fraudulent  intent  or  not, 
and  to  secure  to  the  state  its  revenue  on  all  transfers 
which  have  their  occasion  in  the  death  of  the  trans- 
ferrer;  but  it  is  not  the  purpose  of  the  statute  to  inhibit 
ordinary  transfers,  by  gift  or  otherwise,  if  not  made 
in  contemplation  of  death  or  not  postponed  in  enjoy- 
ment or  possession  until  after  the  death  of  the  donor 
or  grantor.* 

The  policy  of  the  law  is,  that  the  owner  of  property 
shall  not  defeat  or  evade  the  tax  by  any  form  of 
transfer  or  conveyance,  where  after  death  the  income, 
profit  or  enjoyment  inures  to  the  benefit  of  persons  not 
exempted  by  the  statute.' 

*  Estate  of  Lines,  155  Pa.  378,  26  Atl.  728. 

»  People  v.  Kelley,  218  111.  509,  75  N.  E.  1038;  Estate  of  Keener,  194 
N.  Y.  281,  87  N.  E.  428;  Estate  of  Thome,  44  App.  Div.  8,  60  N.  Y. 
Supp.  419;  Estate  of  Spaulding,  49  App.  Div.  541,  63  N.  Y.  Supp.  694, 
order  affirmed  in  163  N.  Y.  607,  57  N.  E.  1124;  Estate  of  Brandreth,  58 
App.  Div.  575,  69  N.  Y.  Supp.  142;  Estate  of  Cornell,  66  App.  Div.  162, 
73  N.  Y.  Supp.  32,  order  modified  in  170  N.  Y.  423,  63  N.  E.  445. 

«  State  Street  Trust  Co.  v.  Stevens,  209  Mass.  373,  95  N.  E.  851. 


152  INHERITANCE  TAXATION. 

§  112.  Intention  of  Donor  or  Grantor. — It  is  not 
necessary,  in  order  that  a  transfer  in  contemplation 
of  death  be  liable  to  the  inheritance  tax,  that  it  should 
be  made  with  fraudulent  intent  to  evade  taxation;  it 
is  enough  that  the  gift  is  made  in  contemplation  of 
death.7  But  the  fact  that  a  conveyance  is  made  With 
the  intention  of  evading  the  tax  does  not  defeat  the 
tax  nor  invalidate  the  transfer,  as  the  fund  or  prop- 
erty is  liable  to  taxation  in  the  possession  of  the 
grantee  or  donee.  The  intention  to  evade  may  be  ap- 
parent in  the  instrument  of  transfer,  or  it  may  be 
found  when  all  the  circumstances  attending  the  trans- 
action are  disclosed.8 

The  intention  to  retain  the  enjoyment  of  property 
conveyed  by  a  deed  to  take  effect  after  the  death  of 
the  grantor  need  not  be  expressed  in  writing.  If  real 
property  is  conveyed  with  a  parol  agreement  or  un- 
derstanding that  the  grantor  shall  retain  the  right  of 
possession  and  enjoyment  of  the  whole  or  some  part 
thereof  during  his  life,  it  is,  after  his  death,  subject 
to  the  inheritance  tax  to  the  extent  of  the  part  so 
retained.9 

§  113.    Consideration  for   Transfer,  in  General. — 

While  the  statutes  of  the  various  states,  as  well  as  the 
congressional  act  of  1898,  taxing  transfers  made  in 
contemplation  of  death  or  to  take  effect  thereupon, 
ordinarily  refer  to  the  transfer  as  by  "deed,  grant, 
sale  or  gift,"  it  seems  to  be  conceded  that  only  such 
transfers  are  contemplated  as  are  voluntary  or  gifts 
proper,  and  that  transfers  for  a  valuable  considera- 
tion are  not  subject  to  the  tax  imposed.10  Said  the 

T  Eosenthal  v.  People,  211  HI.  306,  71  N.  E.  1121. 

*  State  Street  Trust  Co.  v.  Stevens,  209  Mass.  373,  95  N.  E.  851. 

•  People  v.  Moir,  207  HI.  180,  99  Am.  St.  Eep.  205,  69  N.  E.  905. 

10  Estate  of  Hess,  110  App.  Div.  476,  96  N.  Y.  Supp.  990,  affirmed, 
187  N.  Y.  554,  80  N.  E.  1111. 


TRANSFERS  TO  TAKE  EFFECT  UPON  DEATH.       153 

court  in  Hagerty  v.  State,11 '  *  The  meaning  of  the  word 
'sale,'  as  used  in  the  statute,  is  to  be  determined  by 
the  maxim  'noscitur  a  sociis,'  and  it  includes  only 
transmissions  which,  though  in  form  sales,  are  in  fact 
gifts";  and  in  Estate  of  Birdsall: 12  "It  is  very  evident 
that  the  word  'deed,'  as  used  in  this  act,  has  no  refer- 
ence to  a  conveyance  of  property  by  such  an  instru- 
ment made  in  the  ordinary  course  of  business  for  a 
valuable  consideration,  but  is  confined  to  conveyances 
of  real  property  intended  as  gifts";  and  in  Estate  of 
Miller:13  "I  do  not  consider  that  the  statute  has  ref- 
erence to  transfers  made  upon  a  valuable  considera- 
tion, but  that  it  relates  merely  to  voluntary  transfers 
without  consideration,  for  the  tax  is  not  one  upon 
property,  but  upon  the  right  of  succession.  A  payment 
of  an  obligation  dependent  upon  a  valuable  considera- 
tion is  not  a  succession  in  any  sense";  and  in  Blair 
v.  Herold:  "  "I  feel  justified,  therefore,  in  holding  that 
the  words  'deed,  grant,  bargain,  sale  or  gift,'  as  used, 
referred,  each  and  all  of  them,  to  transfers  without 
consideration,  and  operative  by  way  of  gift." 

§  114.  Consideration  of  Support  of  Grantor  or 
Others. — This  question  has  arisen  where  property  has 
been  conveyed  in  consideration  of  the  support  of  the 
grantor  by  the  grantees  during  his  life.  In  such  cases, 
if  a  present  title  is  conveyed,  if  the  property  passes  in 
possession  and  enjoyment  as  of  the  date  of  the  con- 
veyance, no  intention  to  evade  the  tax  appearing,  the 
transfer  is  not  taxable  as  having  been  made  in  con- 
templation of  death  or  to  take  effect  at  or  after 

11  Hagerty  v.  State,  55  Ohio  St.  613,  45  N.  E.  1046. 
"  Estate  of  Birdsall,  22  Misc.  Rep.  180,  49  N.  Y.  Supp.  450. 
i»  Estate  of  Miller,  77  App.  Div.  473,  78  N.  Y.  Supp.  930. 
i«  Blair  v.  Herold,  150  Fed.  199. 


154  INHERITANCE  TAXATION. 

death ; 1B  and  this  although  the  deed  is  withheld  from 
record  until  the  grantor's  death.1* 

Where  a  man  conveys  property  to  third  persons  in 
consideration  of  their  agreement  to  care  for  his  deaf 
and  dumb  daughter  during  her  life,  he  being  well 
advanced  in  years  and  supposing  that  she  will  sur- 
vive him,  which  in  fact  she  does  not,  the  property 
cannot,  on  his  death,  be  subjected  to  the  inheritance 
tax,  for  the  impelling  motive  for  the  transfer  is  not 
the  contemplation  of  death,  but  the  desire  to  provide 
for  the  daughter's  future,  and  besides  the  conveyance 
is  based  upon  a  valuable  consideration.17 

§  115.  Consideration  of  Services.  —  Under  the 
Massachusetts  statute,  where  the  transfer  is  "a  bona 
fide  purchase  for  full  consideration  in  money  or 
money's  worth,"  a  tax  cannot  be  levied.  But  the  con- 
sideration, whether  it  be  money  or  the  equivalent  of 
money,  must  be  full,  else  the  transfer  is  not  exempt. 
If  services  rendered,  or  to  be  rendered,  constitute  the 
consideration,  their  value  may  be  inquired  into  and 
ascertained,  and  where,  in  "money's  worth,"  they 
equal  or  exceed  the  fair  value  of  the  property  at  the 
death  of  the  transferrer,  no  tax  can  be  levied;  but  if 
they  fall  below  that  value,  there  is  no  provision  for 

i«  Lamb's  Estate  v.  Morrow,  140  Iowa,  89,  18  L.  K.  A.,  N.  S.,  226,  117 
N.  W.  1118;  Estate  of  Hess,  110  App.  Div.  476,  96  N.  Y.  Supp.  990, 
affirmed,  187  N.  Y.  554,  80  N.  E.  1111;  In  re  Hulse,  15  N.  Y.  Supp.  770; 
In  re  Thome,  44  App.  Div.  8,  60  N.  Y.  Supp.  419,  appeal  dismissed,  162 
N.  Y.  238,  56  N.  E.  625. 

Where  the  principal  part  of  an  estate  was  conveyed  to  the  grantor's 
cousin,  on  the  latter's  promise  to  give  the  grantor  certain  care  and  execute 
to  her,  free  of  rent,  a  life  lease  of  the  property,  and  the  lease  was 
executed  on  the  same  day  of  the  conveyance,  the  transaction  had  the 
appearance  of  an  attempted  evasion  of  the  transfer  tax  law,  and  the 
transfer  was  held  taxable:  Estate  of  Dobson,  132  N.  Y.  Supp.  472. 

i«  Estate  of  McCormiek,  15  Pa.  Co.  Ct.  621. 

IT  People  T.  Burkhalter,  247  HI.  600,  139  Am.  St.  Eep.  351,  93  N.  E. 
379. 


TRANSFERS  TO  TAKE  EFFECT  UPON  DEATH.       155 

a  reduction,  leaving  the  excess  only  to  be  taxed  as  a 
gratuity.18 

§  116.  Situs  of  Property — Nonresidence. — Where 
the  beneficiaries  of  a  transfer  of  property  within  the 
state  by  a  resident,  by  a  gift  intended  to  take  effect  in 
possession  or  enjoyment  at  or  after  his  death,  take 
the  property  in  possession  or  enjoyment  under  the 
laws  of  the  state,  and  under  an  instrument  there  made, 
it  is  not  important,  so  far  as  concerns  the  application 
of  the  inheritance  tax  statute,  whether  they  reside  in 
the  state  or  elsewhere  at  the  time  of  the  imposition 
of  the  tax.19  And  a  transfer  by  a  resident  of  the 
state  of  stocks,  bonds  and  securities  in  trust  is  sub- 
ject to  the  inheritance  tax,  as  made  to  take  effect  at 
or  after  the  death  of  the  transferrer,  notwithstanding 
the  possession  and  legal  title  of  the  property  at  the 
time  of  his  death  are  in  nonresident  trustees  without 
the  state.20 

§  117.  Transfers  in  Contemplation  of  Death,  in 
General. — The  meaning  of  the  words  "in  contempla- 
tion of  death,"  as  here  used,  must  be  inferred  and 
ascertained  from  the  context  of  the  statute  and  the 
object  or  purpose  of  the  law.  Looking  in  that  direc- 
tion for  their  proper  interpretation,  it  becomes  obvious 
that  they  are  intended  to  cover  transfers  of  persons 
who  are  prompted  to  act  by  reason  of  the  expectation 
of  death  and  who  thereby  accomplish  transmissions  of 
property  in  the  nature  of  testamentary  dispositions. 
The  words  do  not  refer  to  that  general  expectation 
commonly  entertained  by  all  persons,  but  rather  to  that 
apprehension  which  arises  from  some  existing  condi- 

is  State  Street  Trust  Co.  v.  Stevens,  209  Mass.  373,  95  N.  E.  851. 

i»  Estate  of  Green,  153  N.  Y.  223,  47  N.  E.  292. 

20  Estate  of  Keeney,  194  N.  Y.  281,  87  N.  E.  428,  affirmed,  Keeney 

v.  New  York,  222  U.  S.  525,  56  L.  Ed. ,  32  Sup.  Ct.  Rep.  105 ;  In  re 

Douglas  County,  84  Neb.  506,  121  N.  W.  593;  Estate  of  Bullen,  143  Wia. 
512,  139  Am.  St.  Rep.  1114,  128  N.  W.  109. 


156  INHERITANCE  TAXATION. 

tion  of  body  or  some  impending  peril.  They  refer  to 
an  expectation  of  death  which  arises  from  such  a  bod- 
ily or  mental  condition  as  prompts  persons  to  dispose 
of  their  property  and  bestow  it  on  those  whom  they 
regard  as  entitled  to  their  bounty.  This  accords  with 
the  general  purposes  of  the  law,  namely,  the  imposi- 
tion of  a  tax  on  the  devolution  of  property  involved 
in  the  demise  of  the  owner.21  "A  gift  is  made  in  con- 
templation of  an  event  when  it  is  made  in  expectation 
of  that  event,  and  having  it  in  view;  and  a  gift  made 
when  the  donor  is  looking  forward  to  his  death  as 
impending,  and  in  view  of  that  event,  is  within  the 
language  of  the  statute. ' ' 22 

The  contemplation  of  death  must  be  the  impelling 
motive,  without  which  the  conveyance  would  not  be 
made,  in  order  to  subject  the  transfer  of  property  to 
the  inheritance  tax.  An  owner  may  give  away  or 
otherwise  dispose  of  his  property,  or  any  part  of  it, 
in  any  manner  he  sees  fit;  and  if  such  disposition  takes 
effect,  in  possession  and  enjoyment,  during  his  life- 
time, it  will  not  be  taxable  unless  made  in  contempla- 
tion of  his  death.  But  if  the  actual  intention  of  the 
parties  to  a  deed  is,  that  possession  or  enjoyment  of 
the  property  shall  be  postponed  until  after  the  death 
of  the  grantor,  the  transfer  will  be  subject  to  the  in- 
heritance tax,  though  such  intention  is  not  evidenced 
in  writing.  So  will  an  absolute  gift,  although  fol- 
lowed by  possession  and  enjoyment  of  the  property 
in  the  grantor's  lifetime,  if  the  gift  was  made  by  him 
in  contemplation  of  his  death,  and  this  regardless  of 
any  intent  to  evade  the  payment  of  the  tax.28 

21  Estate  of  Baker,  83  App.  Div.  530,  82  N.  Y.  Supp.  390,  affirmed, 
178  N.  Y.  575,  70  N.  E.  1049-;  State  v.  Pabst,  139  Wis.  569,  121  N.  W. 
351. 

22  Estate  of  Benton,  234  111.  366,  14  Ann.  Gas.  107,  18  L.  B.  A.,  N.  S., 
458,  84  N.  E.  1026. 

23  People  v.  Burkhalter,  247  HI.  600,  139  Am.  St.  Rep.  351,  93  N.  E. 
379;  Bailey  v.  Henry  (Tenn.),  143  S.  W.  1124,  discussing  the  rule  of 


TRANSFERS  TO  TAKE  EFFECT  UPON  DEATH.  157 

The  words  ''contemplation  of  death,"  as  defined  in 
section  27  of  the  California  statute,  "shall  be  taken  to 
include  that  expectancy  of  death  which  actuates  the 
mind  of  a  person  on  the  execution  of  his  will,  and  in 
no  wise  shall  said  words  be  limited  and  restricted  to 
that  expectancy  of  death  which  actuates  the  mind  of 
a  person  in  making  a  gift  causa  mortis;  and  it  is 
hereby  declared  to  be  the  intent  and  purpose  of  this 
act  to  tax  any  and  all  transfers  which  are  made  in 
lieu  of  or  to  avoid  the  passing  of  the  property  trans- 
ferred by  testate  or  intestate  laws." 

§  118.  Transfers  in  Contemplation  of  Death — Illus- 
trations.— The  following  gifts  have  been  held  in  con- 
templation of  death,  and  hence  subject  to  inheritance 
taxation:  A  gift  of  corporate  stock  by  a  sick  man  a 
month  or  two  before  death ; 24  a  conveyance  without  con- 
sideration three  days  before  the  grantor  submitted  to  a 
contemplated  surgical  operation  from  which  he  died ; 25 
a  gift  by  a  father  to  his  daughters  of  corporate  stock, 
accompanied  by  the  execution  by  the  daughters  to  him 
of  an  irrevocable  power  of  attorney  to  vote  the  stock 
and  receive  dividends  thereon  during  his  life.28 

The  following  transfers  have  been  held  not  taxable 
as  transfers  made  in  contemplation  of  death:  An  as- 
signment of  corporate  stock  by  a  husband  to  his  wife 
three  years  prior  to  his  death,  he  having  no  reason 
to  expect  immediate  dissolution  at  the  time  of  the 
transfer  and  being  able  for  some  time  thereafter  to 
attend  to  his  duties  and  business;27  an  assignment  of 
stock  by  a  man  to  his  wife  three  weeks  before  his 

the  Tennessee  statute  that  a  tax  is  enforceable  only  where  the  decedent 
was  "seised"  or  "possessed"  of  the  estate  at  the  time  of  his  death. 

24  Eosenthal  v.  People,  211  HI.  306,  71  N.  E.  1121;  Estate  of  Benton, 
234  111.  366,  14  Ann.  Cas.  107,  18  L.  B.  A.,  N.  S.,  458,  84  N.  E.  1026. 

25  Merrifield's  Estate  v.  People,  212  111.  400,  72  N.  E.  446. 

••  Estate  of  Brandreth,  28  Misc.  Rep.  468,  59  N.  Y.  Supp.  1092. 
«  Estate  of  Graves,  52  Misc.  Kep.  433,  103  N.  Y.  Supp.  571. 


158  INHERITANCE  TAXATION. 

death,  he  being  sick  abed  at  the  time  and  having  been 
told  by  his  physician  that  he  should  take  a  long  vaca- 
tion after  recovery.28  The  soundness  of  this  decision, 
however,  is  not  free  from  doubt.  Justice  Jenks  dis- 
sented. In  writing  the  prevailing  opinion,  Justice 
Woodward  stated  that  the  fact  that  the  assignor  of 
the  stock  died  within  about  three  weeks  of  the  assign- 
ment, and  of  the  illness  with  which  he  was  afflicted 
at  the  time,  had  no  bearing  on  the  question.  "The 
only  point  to  be  determined  is  whether  the  transfer 
was  made  in  the  then  belief  that  he  was  not  going  to 
get  well;  that  it  was  made  in  contemplation  of  his  im- 
pending death,  and  for  the  purpose  of  defrauding  the 
state  of  the  transfer  tax ;  for  that  is  the  essence  of  the 
matter,  and  there  is  no  presumption  that  a  man  in- 
tends to  commit  a  fraud  of  any  kind.'* 

§  119.  Determination  of  Taxability  of  Transfer. — 
Whether  or  not  a  gift  is  made  in  contemplation  of 
death,  so  as  to  be  subject  to  the  inheritance  tax,  is  a 
question  of  fact.29 

A  contention  that  a  conveyance  of  real  property  was 
made  in  contemplation  of  death  should  not  be  passed 
upon  without  notice  to  the  grantee,  against  whom  the 
tax  must  be  assessed,  if  at  all." 

2«  Estate  of  Mahlstedt,  67  App.  Div.  176,  73  N.  T.  Supp.  818. 

29  People  v.  Kelley,  218  111.  509,  75  N.  E.  1038 ;  Estate  of  Benton,  234 
HI.  366,  14  Ann.  Gas.  107,  18  L.  E.  A.,  N.  S.,  458,  84  N.  E.  1026.  A 
question  of  fact,  which  the  court  of  appeals  cannot  review,  is  involved 
on  an  appeal  from  an  order  of  the  appellate  division  reversing,  "upon 
the  facts  and  the  law,"  the  surrogate's  decree  confirming  the  report  of  an 
appraiser  levying  a  tax,  where  the  surrogate  rejected  and  the  appellate 
division  accepted  the  version  of  the  beneficiary's  story  most  favorable  to 
herself:  Estate  of  Thome,  162  N.  Y.  238,  56  N.  E.  625. 

In  Estate  of  Crary,  31  Misc.  Eep.  72,  64  N.  Y.  Supp.  566,  it  is  affirmed 
that  the  finding  of  an  appraiser,  after  full  and  fair  investigation,  that 
a  transfer  two  months  before  death  was  not  taxable,  would  not  be  dis- 
turbed on  appeal. 

«o  Estate  of  Wood,  40  Misc.  Eep.  155,  81  N.  Y.  Supp.  511. 


TRANSFERS   TO   TAKE   EFFECT   UPON   DEATH.  159 

§  120.  Gifts  Inter  Vivos  or  Causa  Mortis.— The 
New  York  courts,  following  the  dictum  in  Estate  of 
Seaman,31  have  in  a  number  of  cases  announced  that 
gifts  in  contemplation  of  death,  within  the  meaning  of 
the  inheritance  tax  laws,  refer  only  to  gifts  causa 
mortis,  and  do  not  embrace,  unless  the  transfer  is  made 
with  intent  to  evade  the  law,  gifts  inter  vivos  made 
in  contemplation  of  death.32  But  this  error  has  been 
repudiated,  especially  in  the  later  New  York  decisions, 
and  ' '  gifts  in  contemplation  of  death ' '  have  been  given 
a  more  comprehensive  meaning,  and  not  restricted  to 
donations  technically  known  as  causa  mortis.33  "It 
would  therefore  appear,"  to  quote  from  a  recent  de- 
cision, "that  in  determining  whether  the  gift  was 
made  in  contemplation  of  death,  the  courts  should  not 
be  restricted  to  those  cases  where  the  circumstances 
(such  as  that  the  gift  was  made  when  the  donor  was 
in  extremis,  or  was  dangerously  ill,  or  in  danger  of 
immediate  death,  or  afflicted  with  an  acute  disease) 
would  indicate  the  existence  of  those  conditions  neces- 
sarily requisite  to  the  validity  of  a  gift  causa  mortis, 
but  rather  that  the  facts  and  circumstances  surround- 
ing the  making  of  the  gift  be  taken  into  consideration 
and  a  determination  arrived  at  as  to  whether  such 
facts  and  circumstances  indicate  that  the  gift  was 
made  while  the  donor  contemplated  the  probability 
of  his  own  death  in  the  immediate  future,  or  whether 

si  Estate  of  Seaman,  147  N.  Y.  69,  41  N.  E.  401. 

82  Estate  of  Spaulding,  22  Misc.  Eep.  420,  50  N.  Y.  Supp.  398 ;  Estate 
of  Edgerton,  35  App.  Div.  125,  54  N.  Y.  Supp.  700,  judgment  affirmed 
in  158  N.  Y.  671,  52  N.  E.  1124;  Estate  of  Cornell,  66  App.  Div.  162,  73 
N.  Y.  Supp.  32,  order  modified  in  170  N.  Y.  423,  63  N.  E.  445;  Estate 
of  Bullard,  76  App.  Div.  207,  78  N.  Y.  Supp.  491. 

as  Estate  of  Birdsall,  22  Misc.  Rep.  180,  49  N.  Y.  Supp.  450 ;  Estate 
of  Harbeck,  43  App.  Div.  188,  59  N.  Y.  Supp.  362;  Estate  of  Palmer, 
117  App.  Div.  360,  102  N.  Y.  Supp.  236. 


160  INHERITANCE  TAXATION. 

or  not  the  imminence  of  the  donor's  death  was  in  any 
substantial  sense  a  direct  cause  of  such  gift. ' ' 8* 

The  Illinois  courts  have  from  the  first  declined  to 
restrict  "gifts  in  contemplation  of  death"  to  gifts 
causa  mortis,  but  have  held  subject  to  inheritance 
taxation  all  gifts  made  in  contemplation  of  death, 
whether  or  not  they  are  such  as  are  technically  styled 
gifts  causa  mortis.38  The  same  is  true  of  the  Wiscon- 
sin court.  Said  Justice  Siebecker:  "The  claim  that 
the  words  can  include  only  gifts  causa  mortis  attrib- 
utes to  them  too  restricted  a  meaning.  A  transfer 
valid  as  a  gift  inter  vivos,  if  made  under  circumstances 
which  impress  it  with  the  distinguishing  character- 
istic of  being  prompted  by  an  apprehension  of  impend- 
ing death,  occasioned  by  a  bodily  or  mental  state 
which  has  a  basis  for  the  apprehension  that  death  is 
imminent,  would  be  a  transfer  made  in  contemplation 
of  death  within  the  meaning  of  the  law. ' ' 3a 

Gifts  causa  mortis  are  within  the  statute,  that  is, 
a  gift  by  one  who  anticipates  death  as  being  near, 
made  to  take  by  that  event.  The  donor  has  a  right  to 
recover  back  the  subject  of  the  gift  in  case  he  sur- 
vives, and  the  gift  is  in  the  nature  of  a  legacy  and 
subject  to  his  debts.  The  statute  embraces  all  gifts 
made  in  contemplation  of  death,  and  that  language 
does  not  naturally  or  necessarily  involve  a  fraudulent 
intent." 

§  121.    Transfers  to  Take  Effect  at  Death.— One  of 

the  first  devices  that  suggests  itself  to  accomplish  an 
evasion  of  inheritance  taxation  is  the  making  of  trusts 
or  other  conveyances  whereby  the  grantor  or  donor 

««  Estate  of  Price,  62  Misc.  Rep.  149,  116  N.  Y.  Supp.  283. 

ss  Rosenthal  v.  People,  211  Til.  306,  71  N.  E.  1121;  Estate  of  Benton, 
234  111.  366,  14  Ann.  Cas.  107,  18  L.  R.  A.,  N.  S.,  458,  84  N.  E.  1026. 

a«  State  v.  Pabst,  139  Wis.  561,  121  N.  W.  351. 

«7  Rosenthal  v.  People,  211  111.  306,  71  N.  E.  1121;  In  re  Edwards,  85 
Hun,  436,  32  N.  Y.  Supp.  901,  affirmed,  146  N.  Y.  380,  41  N.  E.  89. 


TRANSFERS  TO  TAKE  EFFECT  UPON  DEATH.       161 

reserves  to  himself  the  beneficial  enjoyment  of  his 
estate  during  life,  and  in  order  to  lay  such  transfers 
under  tribute  and  add  to  the  public  revenue,  inherit- 
ance tax  laws  provide  that  transfers  of  property  to 
take  effect  in  possession  or  enjoyment  after  the  death 
of  the  donor  or  grantor  shall  be  liable  to  taxation. 
Statutes  singling  out  such  transfers  are,  as  already 
pointed  out,  free  from  constitutional  objections ; 38  and 
they  have  frequently  been  applied,  both  to  transfers 
of  real  estate  and  to  transfers  of  corporate  stock  and 
other  personalty.39  They  are  not  given  a  retrospective 

as  See  sec.  100,  ante;  Crocker  v.  Shaw,  174  Mass.  266,  54  N.  E.  549; 
Estate  of  Keeney,  194  N.  Y.  281,  87  N.  E.  428. 

8»  People  v.  Moir,  207  111.  180,  99,  Am.  St.  Eep.  205,  69  N.  E.  905; 
Crocker  v.  Shaw,  174  Mass.  266,  54  N.  E.  549;  Estate  of  Green,  153  N. 
Y.  223,  47  N.  E.  292;  Matter  of  Cruger,  54  App.  Div.  405,  66  N.  Y. 
Supp.  636,  affirmed,  166  N.  Y.  602,  59  N.  E.  1121;  Estate  of  Hess,  187 
N.  Y.  554,  80  N.  E.  1111;  Matter  of  Ogsbury,  7  App.  Div.  71,  39  N.  Y. 
Supp.  978;  Estate  of  Bostwick,  38  App.  Div.  223,  56  N.  Y.  Supp.  495, 
affirmed,  160  N.  Y.  489,  55  N.  E.  208 ;  Estate  of  Bullard,  37  Misc.  Eep. 
663,  76  N.  Y.  Supp.  309 ;  Estate  of  Skinner,  45  Misc.  Eep.  559,  92  N.  Y. 
Supp.  972,  order  modified,  106  App.  Div.  217,  94  N.  Y.  Supp.  144; 
Estate  of  Parsons,  117  App.  Div.  321,  102  N.  Y.  Supp.  168;  Estate  of 
Jones,  65  Misc.  Eep.  121,  120  N.  Y.  Supp.  862;  Appeal  of  Wright,  38 
Pa.  507;  Appeal  of  Waugh,  78  Pa.  436;  Beish  v.  Commonwealth,  106  Pa. 
521;  Appeal  of  Siebert,  110  Pa.  329,  1  Atl.  346. 

In  Eeish  v.  Commonwealth,  106  Pa.  521,  a  deed  in  fee  simple  was 
executed  and  a  bond  taken  for  the  payment  to  the  grantor,  during  his 
life,  of  one-half  of  the  net  income,  and  it  was  held  the  deed  was  intended 
to  take  effect  in  possession  or  enjoyment  after  the  death  of  the  grantor, 
and  the  estate  was  subject  to  an  inheritance  tax. 

In  Appeal  of  Seibert,  110  Pa.  329,  1  Atl.  346,  a  will  was  made  devising 
real  estate,  and  the  testator  then  made  a  deed  conveying  his  lands  to 
persons  named,  to  be  disposed  of  as  directed  in  his  will.  The  land  was 
held  subject  to  an  inheritance  tax. 

If  a  father  and  his  sons  form  a  partnership  and  on  the  same  day  he 
conveys  real  property  to  them,  the  income  from  which  is  ever  afterward 
during  his  life  carried  to  the  partnership  account,  such  lands,  after  his 
death,  are  subject  to  the  inheritance  taxes  to  the  extent  of  his  interest 
or  share  in  such  partnership:  People  v.  Moir,  207  HI.  180,  99  Am.  St. 
Bep.  205,  69  N.  E.  905. 

In  Blair  v.  Herold,  150  Fed.  199,  affirmed  in  Herold  v.  Blair,  158  Fed. 
804,  86  C.  C.  A.  64,  a  partnership  agreement  entered  into  in  good  faitli 
11 


163  INHERITANCE  TAXATION. 

operation,  unless  the  legislative  intent  to  that  effect  ia 
clear.40 

The  owner  of  property  cannot  defeat  the  tax  upon  it 
at  his'  death  by  any  device  securing  to  himself  for  life 
the  income,  profit,  or  enjoyment  thereof;  the  transfer, 
in  order  to  be  without  the  inheritance  tax  law,  must 
be  such  as  passes  the  possession,  the  title,  and  the 
enjoyment  of  the  property  in  the  grantor's  lifetime.41 
Exemption  from  the  tax  depends  upon  the  passing  of 
the  property,  with  all  the  attributes  of  ownership,  in- 
dependently of  the  death  of  the  transferrer.42  The 

before  the  enactment  of  the  war  revenue  act  of  1898  was  held  not  taxable 
as  working  a  transfer  of  property  to  take  effect  in  possession  or  enjoy- 
ment after  the  death  of  the  grantor  or  bargainer. 

In  People  v.  Kelley,  218  HI.  509,  75  N.  E.  1038,  where  a  trust  deed, 
not  made  in  contemplation  of  death,  took  effect  on  delivery  for  the 
benefit  of  the  beneficiaries,  except  that  the  grantor  reserved  to  himself 
out  of  the  income  of  the  fund  two  thousand  four  hundred  dollars 
annually  for  life,  it  was  held  that  so  much  of  the  estate  conveyed  as  was 
necessary  to  produce  such  income  was  subject  to  the  inheritance  tax. 

In  Galard  v.  Winans,  111  Md.  434,  74  Atl.  626,  a  conveyance  by  a 
father  to  trustees  to  hold  during  the  lifetime  of  his  daughter,  interest 
and  increase  to  be  paid  to  her  and  she  to  have  the  privilege  of  disposing 
of  the  corpus  by  will,  was  held  not  taxable. 

In  Estate  of  Borup,  28  Misc.  Rep.  474,  59  N.  Y.  Supp.  1097,  a  gift 
intended  to  take  effect  in  possession  or  enjoyment  at  the  death  of  the 
donor  is  held  taxable,  although  the  donee  survived  the  donor  only  three 
days. 

In  Estate  of  Sharer,  36  Misc.  Eep.  502,  73  N.  Y.  Supp.  1057,  it  is 
decided  that  where  a  testator  placed  unrecorded  deeds  executed  by  him, 
and  securities  assigned  by  him,  in  envelopes  marked  as  the  "property" 
of  the  transferees,  and  placed  the  envelopes  in  a  bank,  labeled  with  his 
name  and  that  of  the  transferees,  but  continued  to  control  the  real  estate 
and  receive  the  income  of  the  securities,  the  property  was  subject  -to  the 
transfer  tax. 

In  Estate  of  Anthony,  40  Misc.  Eep.  497,  82  N.  Y.  Supp.  789,  where 
a  man  had  transferred  to  his  wife's  name  profits  invested  with  his  firm 
for  a  number  of  years,  the  property  was  held  subject  to  the  inheritance 
tax  on  her  death. 

«  Matter  of  Hendricks,  1  Con.  Sur.  301,  3  N.  Y.  Supp.  281. 

«  People  v.  Estate  of  Moir,  207  111.  180,  99  Am.  St.  Rep.  205,  69  N.  E. 
905;  Lamb's  Estate  v.  Morrow,  140  Iowa,  89,  18  L.  R.  A.,  N.  S.,  226,  117 
.N.  W.  1118. 

«  State  Street  Trust  Co.  v.  Stevens,  209  Mass.  373,  95  N.  E.  851. 


TRANSFERS  TO  TAKE  EFFECT  UPON  DEATH.       163 

intention  of  the  parties  as  .to  when  the  gift  is  to  take 
effect  is  the  test  of  taxability.43 

The  statutes  imposing  the  tax  relate  to  estates 
granted  in  deeds  or  conveyances  which  in  some  way 
make  the  estate  granted  dependent  on  the  grantor's 
death;  that  is,  to  interests  in  property,  the  possession 
or  enjoyment  of  which  is  postponed  until  the  death  of 
the  grantor.4* 

§  122.  Marriage  Settlements. — Antenuptial  agree- 
ments and  marriage  settlements  have  been  held  not 
within  the  purview  of  the  statute  imposing  taxes  on 
transfers  made  in  contemplation  of  death  or  to  take 
effect  thereafter.  One  reason  for  this  holding  is  that 
such  transfers  are  founded  upon  a  valuable  considera- 
tion." 

§  123.  Agreements  to  Make  Will. — Where  a  man 
agreed  to  will  his  step-daughter  all  the  property  he 
might  have  at  his  death,  or  a  portion  of  it,  dependent 
on  the  existence  of  other  children,  which  contract  was 
not  performed,  and  she  sued  the  executor,  trustee,  and 
beneficiaries  under  the  will  actually  made,  to  obtain 
a  judgment  declaring  the  agreement  valid  and  direct- 
ing the  execution  to  her  of  all  necessary  releases  and 
conveyance  of  the  property,  it  was  held  in  an  action 
by  her  to  have  the  estate  declared  exempt  from  trans- 
fer tax  that  the  devolution  of  the  property  was  under 
the  will  and  hence  subject  to  taxation.48 

«  Estate  of  Patterson,  127  N.  Y.  Supp.  284. 

4*  Estate  of  Bell,  150  Iowa,  725,  130  N.  W.  798. 

«  Matter  of  Baker,  83  App.  Div.  530,  82  N.  Y.  Supp.  390,  affirmed, 
178  N.  Y.  575,  70  N.  E.  1094;  Estate  of  Craig,  97  App.  Div.  289,  89 
N.  Y.  Supp.  9*71,  affirmed,  181  N.  Y.  551,  74  N.  E.  1116. 

<«  Estate  of  Kidd,  188  N.  Y.  274,  80  N.  E.  924.  In  reaching  this 
conclusion,  the  court  adopts  the  reasoning  of  Matter  of  Dows,  167  N.  Y. 
227,  88  Am.  St.  Eep.  509,  52  L.  B.  A.  433,  60  N.  E.  439. 


164  INHERITANCE  TAXATION. 

§  124.  Transfers  in  Trust,  in  General. — A  trust 
deed  by  which  the  corpus  of  property  is  to  go  to  the 
grantee  at  the  death  of  the  grantor,  and  the  life  use 
is  reserved  to  the  grantor,  is  a  transfer  of  property 
intended  to  take  effect  at  the  death  of  the  grantor  and 
taxable  as  such.  Thus  where  property  is  delivered  by 
the  owner  to  a  trustee,  under  an  instrument  purporting 
to  assign  it  to  the  trustee  and  his  successors  in  trust 
to  collect  the  income  and  apply  the  same  to  the  gran- 
tor's use  during  life,  and  after  his  death  to  distribute 
the  property  among  designated  remaindermen,  the 
transfer  to  the  remaindermen  is  taxable  as  intended 
to  take  effect  in  possession  or  enjoyment  after  the 
death  of  the  donor.47  And  a  transfer  of  corporate 
stock,  upon  the  condition  that  the  transferrer  shall 
enjoy  the  dividends  during  his  lifetime,  is  subject  to 
the  tax  imposed  upon  transfers  intended  to  take  effect 
in  possession  or  enjoyment  at  or  after  the  death  of  the 
transferrer.*8 

Where  a  person  places  money  with  a  trust  company 
under  agreement  that  the  income  is  to  be  paid  to  a 
beneficiary  as  often  as  dividends  become  payable ;  that 
at  the  end  of  five  years  the  settlor  may  withdraw  the 
whole  fund  by  giving  the  trustee  six  months'  notice, 
and  the  trustee  may  pay  off  the  trust  fund  by  giving 
like  notice  to  the  settlor;  that  if  no  such  notices  are 
given,  the  fund  is  to  remain  for  another  period  of  five 
years,  and  the  right  of  withdrawing  or  paying  off 
may  be  exercised  at  intervals  of  five  years  from  the 
date  of  the  agreement;  and  that  in  case  of  the  death 
of  the  settlor  before  the  termination  of  the  trust  or 
any  agreed  expenses  thereof  the  principal  and  unpaid 
income  are  to  be  paid  to  the  beneficiary  in  sixty  days 
after  the  expiration  of  the  five  year  period — the  gift 

«T  Estate  of  Green,  153  N.  Y.  223,  47  N.  E.  292. 

*»  Estate  of  Brandreth,  169  N.  Y.  437,  58  L.  R.  A.  148,  62  N.  E.  563. 


TRANSFERS   TO   TAKE   EFFECT   UPON   DEATH.  165 

is  "made  or  intended  to  take  effect  in  possession  or 
enjoyment  after  the  death  of  the  grantor,"  and  on  his 
death  the  property  is  subject  to  the  inheritance  tax, 
to  be  assessed  as  of  a  time  thirty  days  after  the  ex- 
piration of  the  period  of  five  years  referred  to  in  the 
agreement.49 

A  trust  deed  does  not  constitute  an  absolute  gift  of 
the  property  of  the  grantor  during  his  life,  so  as  to 
be  exempt  from  the  transfer  tax  as  a  gift  intended  to 
take  effect  after  his  death,  where,  after  the  delivery  of 
the  deed  to  the  trustee,  the  grantor  is  not  only  enti- 
tled to  revest  himself  with  the  ownership  of  the  prop- 
erty, but  continues  able  to  enjoy  it  or  to  manage  or 
dispose  of  it  as  he  might  previously  have  done,  by 
reserving  to  himself  the  right  to  amend  the  trust  by 
notice  to  the  trustee,  to  withdraw  or  exchange  any 
securities,  and  to  control  the  acts  of  the  trustee  in 
disposing  of  the  securities  or  making  investments.'0 

A  gift  of  securities  under  an  agreement  that  the 
donor  should,  during  his  life,  have  "all  or  such  part 
of  the  net  income  thereof  as  he  might  wish, ' '  the  donee 
to  have  the  possession  and  management  of  the  secur- 
ities, does  not  make  the  donee  the  absolute  owner 
thereof,  but  only  a  holder  in  trust,  until  the  death  of 
the  donor,  to  pay  the  income  to  him.  The  gift  is  there- 
fore taxable  as  a  transfer  to  take  effect  after  the  death 
of  the  donor.81  So  a  transfer  of  securities  in  trust  for 
the  relatives  of  the  transferrer,  with  a  life  estate  re- 
served to  him  and  power  of  revocation,  is  in  contem- 
plation of  death  and  subject  to  the  inheritance  tax.88 

<»  New  England  Trust  Co.  v.  Abbott,  205  Mass.  279,  137  Am.  St.  Rep. 
437,  91  N.  E.  379. 

so  Estate  of  Bostwick,  160  N.  Y.  489,  55  N.  E.  210. 

61  Estate  of  Cornell,  170  N.  Y.  423,  63  N.  E.  445. 

62  Estate  of  Bullen,  143  Wis.  512,  139  Am.  St.  Bep.  1114,  128  N.  W. 
10* 


166  INHERITANCE  TAXATION. 

§  125.  Trusts. — The  Reservation  of  a  Power  to  Re- 
voke the  trust  at  any  time  during  the  life  of  the  donor, 
however,  does  not  necessarily  mark  the  transfer  as 
one  intended  to  take  effect  after  his  death  and  impress 
it  with  taxable  qualities.53  Nor,  on  the  other  hand, 
does  the  absence  of  power  of  revocation  render  the 
transfer  exempt  from  taxation.  The  test  by  which 
exemption  is  to  be  determined  does  not  depend  upon 
whether  a  power  to  revoke  has  or  has  not  been  re- 
served, but  rather  upon  the  passing  of  the  property, 
with  all  the  attributes  of  ownership,  independently  of 
the  death  of  the  transferrer."  Thus  where  a  trust  deed 
was  intended  to  convey  the  corpus  of  the  estate  to 
the  beneficiary  when  he  attained  his  twenty-first  birth- 
day, the  transfer  was  held  not  taxable,  notwithstand- 
ing the  reservation  in  the  grantor  of  a  power  of  revo- 
cation;65 but  where  a  trust  deed  was  not  intended  to 
pass  the  title  of  the  corpus  of  the  estate  to  the  grantee 
until  the  grantor  died,  the  latter  reserving  the  power 
of  revocation,  the  transfer  was  subjected  to  the  in- 
heritance tax.56  In  both  of  these  cases  the  income 
went  to  the  beneficiary  after  the  delivery  of  the  deed 
and  during  the  life  of  the  grantor.  The  only  substan- 
tial difference  between  them,  it  will  be  noticed,  is  that 
in  the  first  it  was  intended  that  the  corpus  was  to 
pass  to  the  grantee  upon  his  majority,  while  in  the 
latter  it  was  intended  to  pass  on  the  death  of  the 
grantor.  This  difference  resulted  in  a  tax  in  the  first 
case  and  no  tax  in  the  other.  The  New  York  court 
of  appeals  has  intimated  that  it  may  have  gone  too 
far  in  affirming  the  first  decision,  certainly  that  it  then 

«  Estate  of  Masury,  28  App.  Div.  580,  51  N.  Y.  Supp.  331,  affirmed, 
159  N.  Y.  532,  53  N.  E.  1127. 

•*  State  Street  Trust  Co.  v.  Stevens,  209  Mass.  373,  95  N.  E.  851. 

W  Estate  pf  Masury,  28  App.  Div.  580,  51  N.  Y.  Supp.  331,  affirmed, 
159  N.  Y.  532,  53  N.  E.  1127. 

•«  Estate  of  Bostwick,  160  N.  Y.  489,  55  N.  E.  210. 


TRANSFERS  TO  TAKE  EFFECT  UPON  DEATH.  167 

reached  the  limit  beyond  which  the  courts  cannot  go 
without  emasculating  the  provisions  of  the  statute." 

§  126.  Trusts — Income  Payable  to  Transferees. — 
In  some  instances  the  question  is  further  complicated 
by  the  fact  that  the  beneficiaries  are,  by  the  term's  of 
the  trust,  entitled  to  the  income,  in  whole  or  in  part, 
of  the  corpus  of  the  estate  during  the  life  of  the 
grantor.  In  discussing  this  aspect  of  the  question 
Justice  Crosby88  had  this  to  say:  "I  believe  that  the 
authorities  sustain  the  proposition  that  a  trust  deed 
giving  all  the  income  of  an  estate  to  beneficiaries  for 
the  life  of  the  grantor  and  the  corpus  at  his  death,  is, 
so  far  as  the  corpus  is  concerned,  a  transfer  intended 
to  take  effect  in  possession  and  enjoyment  at  the  death 
of  the  grantor,  and  therefore  taxable.  In  such  a  case 
the  beneficiary  possesses  and  enjoys  the  income  during 
the  life  of  the  grantor,  but  possession  and  enjoyment 
of  income  is  not  possession  and  enjoyment  of  the  prin- 
cipal which  produces  that  income.  It  seems  to  me  that 
the  plain  wording  of  the  statute  is  enough  to  fix  tax- 
ability upon  the  entire  corpus  of  the  property  passing 
by  this  trust  deed,  even  if  the  entire  income  derived 
therefrom  had  gone  to  the  beneficiaries  from  and  after 
the  delivery  of  the  deed,  because,  by  the  terms  of  the 
deed,  the  corpus  was  intended  to  pass  into  the  pos- 
session and  enjoyment  of  the  beneficiaries  at  or  after 
the  death  of  the  grantor.  ...  .People  v.  Kelley,"  an 
Illinois  decision,  seems  to  be  a  case  exactly  in  point, 
and  the  statute  in  Illinois  is  the  same  as  in  New 
York.  There  the  holding  was  distinctly  in  favor  of 
the  nontaxability  of  that  portion  of  the  trust  fund, 
the  income  of  which  was  payable  to  the  beneficiary 

«T  Estate  of  Bostwick,  160  N.  Y.  489,  55  N.  E.  210;  Estate  of  Patter- 
aon,  127  N.  Y.  Supp.  284. 

»8  Estate  of  Patterson,  127  N.  Y.  Supp.  284. 
«•  People  v.  Kelley,  218  I1L  509,  75  N.  E.  1038. 


168  INHERITANCE  TAXATION. 

during  the  life  of  the  grantor.  But  I  do  not  believe 
the  holding  in  that  case  is  good  law  in  New  York, 
for  in  Matter  of  Cruger60  we  have  a  case  apparently 
exactly  in  point  in  which  the  whole  trust  fund  was 
taxed,  although  the  income  to  be  derived  therefrom 
(except  the  surplus  income,  if  any,  over  and  above 
twelve  hundred  dollars  a  year)  went  to  the  beneficiary 
during  the  grantor's  life  from  the  time  the  trust  was 
created.  And  the  court  there  said,  'the  present  case 
seems  to  fall  squarely  within  the  terms  of  the  stat- 
ute.' " 

«o  Estate  of  Cruger,  54  App.  Div.  405,  66  N.  Y.  Supp.  636. 


EXEMPTIONS  FROM   TAX.  169 


CHAPTER 
EXEMPTIONS  FROM  TAX. 

§  130.  Constitutionality  of  Exemptions. 

§  131.  Interpretation  of  Exemptions. 

§  132.  Retrospective  Operation  of  Statute. 

§  133.  Exemption  Based  on  Valuation  of  Property. 

§  134.  Manner  of  Determining  Exemption. 

§  135.  Property  in  Foreign  Jurisdiction. 

§  136.  Exemption  Based  on  Relationship  of  Parties. 

§  137.  Adopted  Children. 

§  138.  Persons  to  Whom  Decedent  Stood  as  Parent. 

§  139.  Illegitimate  Children. 

§  140.  Nation,  State  or  Municipality. 

§  130.  Constitutionality  of  Exemptions. — Probably 
all  inheritance  tax  laws  provide  certain  exemptions, 
the  leading  ones  being  based  on  the  degree  of  relation- 
ship of  the  parties,  the  value  of  the  estate  transmitted, 
and  the  character  of  the  recipient  as  a  charity.  It  is 
not  uncommon,  especially  among  the  earlier  statutes, 
to  exempt  transmissions  to  the  children  and  the  surviv- 
ing husband  or  wife  of  the  decedent;  or,  if  not  ex- 
empting them  entirely,  to  impose  upon  them  a  lower 
rate  of  taxation  than  upon  strangers  and  distant  or 
collateral  relatives.  This  discrimination  against  col- 
lateral relatives  and  strangers  to  the  blood  of  the  dece- 
dent is  in  harmony  with  the  general  sentiment  of 
humanity,  and  does  not  offend  the  constitutional  rule 
of  uniformity  and  equality  in  the  imposition  of  taxes. 
The  matter  of  discrimination  between  persons  of  dif- 
ferent degrees  of  relationship  is  one  of  legislative 
discretion,  limited,  if  at  all,  only  by  the  rule  of  rea- 
sonableness and  propriety.1 

i  See  sec.  21,  ante. 

The  equal  protection  of  the  laws  is  not  denied  by  a  statute  which  sub- 
jects to  the  burdens  of  an  inheritance  tax  the  brothers  and  sisters  of  a 
decedent,  while  exempting  therefrom  strangers  to  the  blood,  such  as 


170  INHERITANCE  TAXATION. 

Another  exemption  is  based  upon  the  value  of  the 
property  transmitted.  It  is  customary  to  exempt  from 
inheritance  taxation  estates  or  inheritances  of  a  lim- 
ited value.  The  exemption  is  usually  more  liberal  for 
direct  than  for  collateral  inheritances.  The  favoritism 
toward  small  or  moderate  estates  or  inheritances  is 
often  carried  further  by  making  the  tax  rate  increase 
with  the  value  or  amount  of  the  estate.  Statutes  are 
not  unconstitutional  because  of  these  features.2 

Most  statutes  make  a  further  exemption  of  gifts  to 
charitable,  educational,  and  religious  institutions. 
There  is  no  constitutional  objection  to  such  exemption. 
A  statute  imposing  a  collateral  inheritance  tax,  but 
exempting  bequests  for  charities,  without  limiting  the 
amount  thereof,  does  not  violate  a  constitutional  pro- 
vision which  prohibits  laws  exempting  from  taxation 
property  held  for  charitable  purposes  in  excess  of  a 
specified  amount,  for  an  inheritance  tax  is  not  a  tax 
on  property.3  And  a  statute  excluding  foreign  cor- 
porations from  the  exemption  of  a  tax  on  devises  to 
charities  does  not  abridge  the  privileges  or  immunities 
of  the  citizens  of  the  United  States,  nor  deny  the 
equality  of  the  laws.* 

The  supreme  court  of  South  Dakota  has  declined 
to  pronounce  an  inheritance  tax  statute  unconstitu- 
tional because  making  exemptions  other  than  those 
allowed  by  the  state  constitution,  since  the  constitu- 
tion has  reference  to  property  taxes.6 

the  wife  or  widow  of  a  son  or  the  husband  of  a  daughter  of  the  decedent: 
Estate  of  Campbell,  143  Cal.  627,  77  Pac.  674,  affirmed,  200  U.  S.  87,  50 
L.  Ed.  382,  26  Sup.  Ct.  Eep.  182. 

*  See  sec.  24,  ante. 

»  State  v.  Henderson,  160  Mo.  190,  60  S.  W.  1093. 

*  Estate  of  Speed,  216  111.  23,  108  Am.  St.  Eep.  189,  74  N.  E.  809, 
affirmed,  203  U.  S.  55»,  8  Ann.  Gas.  157,  51  L.  Ed.  314,  27  Sup.  Ct. 
Rep.  171;  Humphreys  v.  State,  70  Ohio  St.  67,  101  Am.  St.  Eep.  888, 
1  Ann.  Cas.  233,  65  L.  E.  A.  776,  70  N.  E.  957. 

*  Estate  of  McKennan,  25  S.  D.  369,  126  N.  W.  611,  130  N.  W.  33. 


EXEMPTIONS  FROM   TAX.  171 

§  131.  Interpretation  of  Exemptions.— Courts  have 
usually  been  disposed  to  give  inheritance  tax  statutes 
a  liberal  interpretation  in  favor  of  the  government, 
by  subjecting  to  taxation  every  transmission  of  prop- 
erty that  could  reasonably  be  brought  within  the  pur- 
view of  the  law.a  In  California  it  has  been  affirmed 
that  a  strict  construction  should  be  indulged  against 
a  rule  of  exemption  which  would  yield  absurd  and 
unjust  results ; 7  in  Louisiana  it  has  been  held  that  the 
exception  made  by  the  constitution  should  be  construed 
strictly,  and  not  extended  by  inference  to  property  not 
plainly  and  clearly  within  its  terms ; 8  in  Tennessee  it 
is  said  to  be  axiomatic  and  fundamental  that  exemp- 
tions from  taxation  must  positively  appear,  and  that 
no  implication  will  arise  that  any  species  of  property 
or  subject  of  taxation  is  intended  to  be  excluded  if 
it  comes  within  the  purview  of  the  statute ; 9  and  in 
New  Jersey,  that  all  exemptions  from  general  taxation 
are  to  be  considered  strictly,  the  resolution  in  case  of 
doubt  being  in  favor  of  the  rule  which  subjects  all 
property  to  a  just  share  of  the  public  burdens.10  But 
while  all  this  is  true,  a  law  imposing  inheritance  taxes 
is  not  extended  by  construction  or  intendment  to  sub- 
jects lying  beyond  its  domain.10* 

.    6  See  sec.  35,  ante. 

i  Estate  of  Bull,  153  Gal.  715,  96  Pac.  366. 

•  Succession  of  Kohn,  115  La.  71,  38  South.  898. 

•  English  v.  Crenshaw,  120  Tenn.  531,  127  Am.   St.  Rep.   1025,  17 
L.  B.  A.,  N.  S.,  753,  110  S.  W.  210. 

10  Estate  of  Gopsill,  77  N.  J.  Eq.  215,  77  Atl.  793.  To  the  same  effect 
is  Estate  of  Hickok,  78  Vt.  259,  6  Ann.  Gas.  578,  62  Atl.  724. 

ioa  Estate  of  Kerr,  159  Pa.  512,  28  Atl.  354;  English  v.  Crenshaw, 
120  Tenn.  531,  127  Am.  St.  Bep.  1025,  17  L.  E.  A.,  N.  S.,  753,  110 
8.  W.  210.  It  has  been  said  that  the  general  principle  that  statutes  of 
exemption  from  taxation  must  be  strictly  construed  against  the  person 
or  corporation  claiming  it  has  been  generally  applied  in  cases  where 
an  exemption  is  claimed  from  the  general  burden  of  taxation  common 
upon  all  property  or  upon  the  people  generally;  and  that  where  a  tax 
is  not  such  a  common  burden,  but  reaches  only  a  special  class  of  persons, 
the  rule  is  that  to  subject  such  a  class  of  persons  to  the  tax  requires 


172  INHERITANCE  TAXATION. 

The  exemption  in  the  Louisiana  constitution  of  prop- 
erty from  inheritance  taxes  which  has  borne  its  just 
proportion  of  taxes  is  restricted  to  the  particular 
property  inherited ;  and  if  taxes  thereon  have  not  been 
paid  by  the  former  owner,  it  matters  not  that  the  de- 
cedent has  paid  all  the  taxes  assessed  against  him  on 
other  property  which  he  sold  and  invested  the  pro- 
ceeds in  the  property  inherited.  "The  exemption  is 
neither  personal  nor  transmissible."11  State  and 
municipal  bonds,  though  exempt  from  taxation,  do 
not  fall  within  the  above  exception,  nor  do  shares  of 
stock  not  taxed,  though  the  corporation  in  which  they 
are  held  may  have  been  taxed  on  its  property.12 

The  exemption  of  property  from  the  payment  of  the 
tax  follows  the  proceeds  used  to  discharge  a  legacy. 
An  inheritance  tax  is  due  on  a  legacy  not  paid  from 
the  proceeds  of  exempt  property,  but  it  is  not  due  on 
a  legacy  necessarily  paid  from  the  proceeds  of  exempt 
property.18 

§  132.  Retrospective  Operation  of  Statute. — The 
rights  and  obligations  of  all  parties  relative  to  the  pay- 
ment of  an  inheritance  tax  are  ordinarily  determin- 
able  as  of  the  time  of  the  death  of  the  decedent;  the 
statute  imposing  the  tax  usually  has  no  retrospective 
operation,  and  does  not  apply  to  estates  in  course  of 
settlement  or  to  property  that  has  vested  in  the  bene- 
ficiaries at  the  time  the  law  goes  into  effect,  at  least 
unless  the  legislative  intent  plainly  appears  to  the  con- 
trary.1* And  such  is  true  in  regard  to  exemptions; 

a  clear  legislative  intention:  Estate  of  Mergentine,  129  App.  Div.  367, 
113  N.  Y.  Supp.  948,  953,  citing  Estate  of  Euston,  113  N.  Y.  174,  3 
L.  B.  A.  464,  21  N.  E.  87;  Estate  of  Fayerweather,  143  N.  Y.  114,  38 
N.  E.  278;  Estate  of  Harbeck,  161  N.  Y.  211,  55  N.  E.  850. 

11  Succession  of  Pritchard,  138  La.  883,  43  South.  537. 

"  Succession  of  Kohn,  115  La.  71,  38  South.  898. 

i»  Succession  of  Becker,  118  La.  1056,  43  South.  701. 

i«  See  sec.  36,  ante. 


EXEMPTIONS   FROM    TAX.  173 

statutes  providing  for  them  will,  as  a  rule,  be  given 
a  prospective  operation,  applying  only  to  the  future, 
and  not  affecting  the  right  of  the  state  to  taxes  in 
case  of  deaths  prior  to  the  passage  of  the  exemption 
act.15  If  an  educational  bequest  was  subject  to  the 
inheritance  tax  at  the  time  of  the  testator's  death,  the 
tax  may  be  collected,  notwithstanding  proceedings 
therefor  are  not  commenced  until  after  an  amendment 
to  the  statute  exempting  the  bequest  has  gone  into 
effect.16 

In  California  it  has  been  decided  that  the  section  of 
the  statute  which  purports  retroactively  to  exempt 
resident  nephews  and  nieces,  and  educational  and 
benevolent  institutions,  from  the  payment  of  unpaid 
collateral  inheritance  taxes,  violates  the  constitutional 
provisions  of  that  state  forbidding  special  legislation 
releasing  any  existing  obligation  to  the  state,  and  pro- 
hibiting the  legislature  from  making  any  gift  to  any 
individual."  But  in  Maryland,  where  the  legislature, 
by  amendment,  included  " husbands"  in  the  exempt 
class,  and  provided  that  the  exemption  should  apply 
in  all  cases  where  the  tax  had  not  actually  been  paid, 

«  Provident  Hospital  etc.  Assn.  v.  People,  198  HI.  495,  64  N.  E.  1031; 
Succession  of  Becker,  118  La.  1056,  43  South.  701;  Sherrill  v.  Christ 
Church,  121  N.  Y.  701,  25  N.  E.  50.  The  exemption  in  this  last  case  was 
in  favor  of  certain  corporations.  Said  the  court:  "The  act  provides 
that  the  personal  estate  of  certain  corporations,  among  which  are  re- 
ligious corporations,  shall  be  exempt  from  taxation,  and  that  the  collat- 
eral inheritance  tax  act  shall  not  apply  to  them.  It  is  true  that  the 
state  could  by  act  of  the  legislature  duly  passed  release  taxes  already 
due.  But  legislative  acts  are  always  construed  as  prospective  in  their 
operation  unless  by  their  plain  language  it  can  be  seen  that  it  was  the 
legislative  intention  that  they  should  have  retroactive  effect.  This  act 
was  clearly  prospective  in  its  operation,  and  applied  only  to  the  future, 
and  as  this  tax  became  due  and  payable  before  its  passage,  it  may  still 
be  enforced  in  the  manner  provided  in  the  collateral  inheritance  act." 
See,  too,  Estate  of  Wolfe,  2  Con.  600,  15  N.  Y.  Supp.  539. 

16  Connell  v.  Crosby,  210  111.  380,  71  N.  E.  350. 

"  Estate  of  Stanford,  126  Cal.  112,  45  L.  E.  A.  788,  54  Pac.  259, 
58  Pac.  462,  Justice  Henshaw  dissenting. 


174  INHERITANCE  TAXATION. 

the  court,  adopting  the  language  of  counsel,  said:  "If 
the  legislature  is  satisfied  that  a  given  tax  is  no  longer 
necessary,  that  it  is  unjust,  that  a  change  of  circum- 
stances requires  its  repeal,  that  public  policy  demands 
that  the  repeal  should  be  prompt,  should  give  instant 
relief,  and  should  therefore  extend  to  all  who  had  not 
yet  actually  paid,  the  legislature  has  in  its  discretion 
the  constitutional  right  so  to  enact,  without  being  at 
the  same  time  compelled  to  embarrass  the  treasury 
by  a  sweeping  restitution  to  all  who  had  paid  the  tax 
from  the  time  of  its  imposition.  Under  some  circum- 
stances such  a  retrospective  exemption  might  be  highly 
expedient,  and  under  others  not.  The  question  is  one 
of  policy  for  the  legislature,  and  not  one  of  law  for 
the  courts. ' ' 18 

§  133.  Exemption  Based  on  Valuation  of  Property. 
It  is  usual  for  inheritance  tax  laws  to  exempt  certain 
transmissions  from  taxation  if  the  valuation  does  not 
exceed  a  specified  amount.  There  is  no  constitutional 
objection,  as  has  already  been  seen,  to  this  form  of 
exemption.19  The  valuation  is  generally  determin- 
able  as  of  the  date  of  the  death  of  the  decedent,  for 
that  is  the  time  the  transmission  takes  effect;  hence 
the  increase  or  income  after  death  is  not  considered 
in  estimating  the  value  of  the  estate.  But  of  course 
the  question  depends  upon  the  legislative  intent,  as 
expressed  in  the  statute,  and  in  some  states  the  in- 
crease arising  between  the  date  of  the  death  and  the 
date  of  distribution  is  taken  into  consideration.20 

§  134.  Manner  of  Determining  Exemption. — Under 
the  obscure  wording  of  many  statutes  it  is  a  matter 

i«  Montague  v.  State,  54  Md.  481,  488.     See,  also,  Roman  Catholic 
Church  v.  Niles,  86  Hun,  221,  33  N.  Y.  Supp.  243. 
19  See  sec.  24,  ante. 
*°  See  sec.  52,  ante. 


EXEMPTIONS  FROM   TAX.  175 

of  no  small  difficulty  to  determine  whether  the  exemp- 
tion is  from  the  separate  legacies  or  inheritances  or 
from  the  aggregate  value  of  the  estate  of  the  decedent. 
Some  statutes  have  been  construed  to  allow  the  ex- 
emption from  each  legacy  or  distributive  share,  or, 
otherwise  expressed,  to  each  legatee  or  distributee.21 
At  one  time  this  rule  prevailed  in  New  York,  but 
since  the  acts  of  1892  and  1896,  the  whole  property 
passing  to  persons  not  exempt  must  be  considered  to- 
gether, and  if  the  aggregate  amount  thereof  exceeds 
the  amount  exempted  by  the  statute,  the  tax  is  col- 
lectible, although  each  individual  inheritance,  bequest 

21  People  v.  Koenig,  37  Colo.  283,  11  Ann.  Cas.  140,  85  Pae.  1129; 
Booth  v.  Commonwealth,  130  Ky.  88,  33  L.  R.  A.,  N.  S.,  592,  113  S.  W. 
61;  State  v.  Hamlin,  86  Me.  495,  41  Am.*St.  Eep.  569,  25  L.  B.  A.  632, 
30  Atl.  76;  State  v.  Probate  Court,  101  Minn.  485,  112  N.  W.  878; 
Knowlton  v.  Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20  Sup.  Ct.  Rep.  747. 
The  Minnesota  court,  in  the  above  case,  expresses  the  rule  thus:  In  de- 
termining the  value  of  the  estate  for  the  purpose  of  fixing  the  amount 
of  the  inheritance  tax,  where  the  estate  descends  to  two  or  more  legatees 
or  devisees  in  equal  shares,  an  exemption  to  each  should  be  allowed. 

In  the  above  Colorado  case,  the  words  "such  estate"  are  construed 
as  referring  to  property  received  by  each  person. 

In  the  case  of  State  v.  Hamlin,  86  Me.  495,  41  Am.  St.  Rep.  569,  25 
L.  R.  A.  632,  30  Atl.  76,  the  court,  in  construing  the  Maine  statute, 
says:  "The  question  whether  the  exemption  of  five  hundred  dollars  in 
the  first  section  is  an  exemption  from  the  corpus  of  the  estate,  or  a 
several  exemption  of  that  sum  from  each  portion  of  the  estate  passing 
by  will  or  descent  to  persons  outside  the  exempted  classes,  is  raised  by 
this  appeal.  A  careful  examination  of  the  statute  satisfies  us  that  the 
legislature  intended  the  exemption  to  apply  to  each  taker  within  the 
class  subject  to  the  duty.  The  language  of  section  1  is  that  'all  prop- 
erty ....  which  shall  pass  by  will  or  by  the  intestate  laws  of  this 
state  ....  other  than  to  or  for  the  use  of  the  father,  etc.,  ....  shall 
be  liable  to  a  tax  of  two  and  one-half  per  cent  of  its  value  above  the 
sum  of  five  hundred  dollars,'  etc.,  and  any  grantee  under  a  conveyance 
made  during  the  grantor's  life,  to  take  effect  after  his  death,  'shall  be 
liable  for  all  such  taxes.'  It  is  difficult  to  construe  this  language  to 
mean  other  than  that  such  taker,  subject  to  the  tax,  shall  be  liable  upon 
the  amount  received  above  five  hundred  dollars.  This  construction  is 
greatly  aided  by  the  second  section This  provision  is  plainly  in- 
consistent with  the  claim  that  the  five  hundred  dollars  exemption  is  to 
be  taken  once  for  all  from  the  corpus  of  the  decedent's  entire  estate." 


176  INHERITANCE  TAXATION. 

or  devise  is  less  than  the  exemption.  The  exemption 
is  taken  from  the  estate  of  the  decedent  as  a  whole, 
not  from  each  interest  transferred;  and  if  the  aggre- 
gate amount  of  the  estate  exceeds  the  amount  of  the 
exemption  which  the  statute  allows,  the  tax  must  be 
imposed  upon  each  inheritance  or  bequest,  irrespective 
of  whether  it  exceeds  the  exemption.22  This  interpre- 

22  Estate  of  Hoffman,  143  N.  Y.  327,  38  N.  E.  311 ;  Estate  of  Corbett, 
171  N.  Y.  516,  64  N.  E.  209;  Estate  of  Costello,  189  N.  Y.  288,  82 
N.  E.  139;  Estate  of  Hall,  88  Hun,  68,  34  N.  Y.  Supp.  616;  Estate  of 
Birdsall,  22  Misc.  Rep.  180,  49  N.  Y.  Supp.  450;  Estate  of  De  Graaf, 
24  Misc.  Eep.  147,  53  N.  Y.  Supp.  591;  Estate  of  Curtis,  31  Misc.  Eep. 
83,  64  N.  Y.  Supp.  574;  Estate  of  Rosendahl,  40  Misc.  Rep.  542,  82 
N.  Y.  Supp.  992;  Estate  of  Garland,  88  App.  Div.  380,  84  N.  Y.  Supp. 
630;  Estate  of  Mock,  113  App.  Div.  913,  100  N.  Y.  Supp.  1130.  In  the 
Costello  ease  the  New  York  court  of  appeals  decides  that  in  case  the 
personal  property  of  the  deceased  person  exceeds  in  the  aggregate  five 
hundred  dollars,  the  amount  passing  to  his  nieces,  although  their  in- 
dividual shares  are  less  than  two  hundred  dollars,  is  taxable. 

And  in  the  above  Corbett  case  the  New  York  court  of  appeals  decides 
that  when  the  aggregate  amount  of  the  personal  property  exceeds  ten 
thousand  dollars,  the  tax  must  be  imposed  upon  each  and  all  of  the 
estates  which  are  exempted  therefrom,  when  the  aggregate  amount  of 
the  personal  property  does  not  exceed  the  sum  of  ten  thousand  dollars, 
except  upon  legacies  to  a  bishop  or  any  religious  corporation.  "To  give 
a  concrete  illustration,"  said  Chief  Justice  Parker,  "of  the  working  of 
the  statute  as  construed  by  this  court:  An  estate  of  fifteen  thousand 
dollars,  in  which  six  thousand  dollars  was  given  to  a  bishop  or  religious 
corporation,  which  are  specifically  exempted  from  taxation  by  the  statute, 
and  nine  thousand  dollars  given  to  a  brother  and  sister,  would  not  be 
taxable  because  the  aggregate  amount  passing  to  persons  not  specifically 
exempted  would  not  be  of  the  value  of  ten  thousand  dollars;  but  if  only 
five  thousand  dollars  were  given  to  the  bishop  or  corporation  and  ten 
thousand  dollars  were  given  to  the  next  of  kin,  whether  in  different 
classes  or  not,  all  would  be  taxed  at  the  rate  provided  in  the  statute, 
because  the  aggregate  amount  thus  given  is  equal  to  the  sum  of  ten 
thousand  dollars." 

In  Estate  of  Conklin,  39  Misc.  Rep.  771,  80  N.  Y.  Supp.  1124,  it  is 
said  that  by  no  possible  construction  can  the  Corbett  case  be  made  to 
hold  that  bishops  and  religious  corporations  are  the  only  specific  exemp- 
tions in  the  statute,  and  it  is  held  that  if  an  estate  falls  under  two 
thousand  five  hundred  dollars,  of  which  all  but  two  hundred  and  fifty 
dollars  passes  to  sisters  of  the  decedent,  none  of  the  property  can  be 
taxed.  Said  the  court:  "The  sum  of  this  law  is,  therefore,  that,  given 
an  estate  of  less  than  ten  thousand  dollars  value,  it  is  taxable  only  when 


EXEMPTIONS   FROM    TAX.  177 

tation  has  been  adopted  in  a  number  of  other  states 
besides  New  York.23 

The  question  has  naturally  arisen,  in  fixing  the- in- 
heritance tax,  whether  the  amount  of  the  exemption 
can  be  deducted  from  an  estate  or  distributive  share 
which  exceeds  in  value  the  amount  of  the  exemption, 
or  whether  the  exemption  is  restricted  to  such  estates 
or  distributive  shares  as  do  not  exceed  the  exemp- 
tion in  amount.  This  question  comes  near  being  en- 
croached upon  in  the  preceding  paragraph.  It  will 

that  part  of  it  passing  to  persons  not  specifically  exempted  equals  or 
exceeds  five  hundred  dollars  in   value." 

A  legacy  of  less  than  five  hundred  dollars  to  a  niece  who  has  stood 
in  the  relation  of  child  to  the  testator  for  twenty  years  or  more,  which 
legacy  is  exempt  from  the  tax,  can  be  added  to  legacies  to  nephews  and 
th«ir  wivea  in  order  to  make  the  aggregate  estate  exceed  five  hundred 
dollars.  She  is  not  a  person  "specifically  exempt,"  as  is  a  bishop: 
Estate  of  Murray,  96  App.  Div.  128,  89  N.  Y.  Supp.  71. 

For  other  cases  construing  the  New  York  statutes,  see  Estate  of  Howe, 
112  N.  Y.  100,  2  L.  R.  A.  825,  19  N.  E.  513;  Estate  of  Sherwell,  125 
N.  Y.  376,  26  N.  E.  464;  Estate  of  Swift,  2  Con.  644,  16  N.  Y.  Supp. 
193,  affirmed,  64  Hun,  629,  19  N.  Y.  Supp.  292,  modified  in  137  N.  Y. 
77,  18  L.  E.  A.  709,  32  N.  E.  1096;  Estate  of  Peck,  24  Abb.  N.  C.  365, 
9  N.  Y.  Supp.  465;  Estate  of  Underbill,  2  Con.  262.,  20  N.  Y.  Supp. 
134;  Estate  of  Bird,  2  Con.  376,  11  N.  Y.  Supp.  895;  Estate  of  Bliss, 
6  App.  Div.  192,  39  N.  Y.  Supp.  875. 

Under  the  New  York  statute  of  1903,  in  ascertaining  whether  a  sister 
is  exempt  as  to  real  and  personal  property  willed  her  by  her  brother,  both 
the  realty  and  the  personalty  should  be  added  together  to  ascertain 
whether  or  not  the  value  exceeds  ten  thousand  dollars :  Estate  of  Hallock, 
42  Misc.  Rep.  473,  87  N.  Y.  Supp.  255. 

23  Commonwealth  v.  Boyle,  2  Del.  Co.  Rep.  335;  Herriott  v.  Bacon, 
110  Iowa,  342,  81  N.  W.  701 ;  Gilbertson  v.  McAuley,  117  Iowa,  522, 
91  N.  W.  788;  Stelwagen  v.  Durfee,  130  Mich.  166,  89  N.  W.  728; 
Estate  of  Howell,  147  Pa.  164,  23  All.  403;  Dixon  v.  Rickerts,  26  Utah, 
215,  72  Pac.  947. 

Said  the  court  in  the  above  case  of  Estate  of  Howell,  147  Pa.  164, 
23  Atl.  403:  "The  intention  of  the  legislature  is  clear,  that  the  liability 
to  the  tax  is  to  be  determined,  not  by  the  amount  of  the  legacy,  but  by 
the  clear  value  of  the  estate  passing  to  persons  or  bodies  corporate  not 
exempt  from  taxation.  If  the  net  value  of  the  estate  to  be  distributed 
exceeds  two  hundred  and  fifty  dollars,  it  follows,  therefore,  that  legacies 
or  distributive  shares  passing  to  collaterals,  strangers  in  blood,  etc.,  are 
liable  to  the  tax." 
12 


178  INHERITANCE  TAXATION. 

be  considered  further  in  a  subsequent  chapter;  so  also 
will  the  deduction  of  the  exemption  in  fixing  pro- 
gressive rates  of  taxation.23*  In  Iowa  when  an  estate 
does  not  contain  above  one  thousand  dollars  after  pay- 
ment of  all  debts,  it  is  wholly  exempt;  if  otherwise, 
all  property  passing  to  collateral  distributees  is  sub- 
ject to  the  tax.  There  is  no  exemption  where  the  value 
of  the  estate,  after  the  debts  are  paid,  exceeds  one 
thousand  dollars.23" 

§  135.  Property  in  Foreign  Jurisdiction. — The  Mas- 
sachusetts statute,  after  providing  that  executors  and 
administrators  shall  be  liable  for  the  taxes  it  imposes, 
continues:  "But  no  bequest,  devise  or  distributive 
share  of  an  estate  which  shall  so  pass  to  or  for  the 
use  of  a  husband,  wife,  father,  mother,  child  or  adopted 
child  of  the  deceased,  unless  its  value  exceeds  ten 
thousand  dollars,  and  no  other  bequest,  devise  or  dis- 
tributive share  of  an  estate  unless  its  value  exceeds 
one  thousand  dollars,  shall  be  subject  to  the  provisions 
of  this  act."  Speaking  of  this  provision,  Justice 
Morton  says:  It  is  plain  "that  the  'bequest,  devise  or 
distributive  share'  referred  to  is  of  property  within 
the  jurisdiction  of  this  commonwealth.  The  section 
deals  with  property  in  this  commonwealth,  and  no- 
where else.  The  word  'estate'  in  the  connection  in 
which  it  is  used  means,  and  can  only  mean,  property 
in  this  commonwealth.  It  necessarily  follows  that  in 
determining  whether  'a  bequest,  devise  or  distributive 
share'  is  or  is  not  exempt,  the  treasurer  and  receiver 
general  have  no  right  to  take  into  account  the  amount 
received  by  the  devisees  or  distributees  from  property 
situated  in  another  state  or  country.  To  do  so  would 

zs*  See  sec.  225,  post. 

zsb  Herriott  v.  Bacon,  110  Iowa,  342,  81  N.  W.  701;  Gilbertson  v. 
McAuley,  117  Iowa,  522,  91  N.  W.  788;  Morrow  v.  Durant,  140  Iowa, 
437,  17  Ann.  Cas.  850,  23  L.  B.  A.,  N.  S.,  474,  118  N.  W.  781. 


EXEMPTIONS  FROM   TAX.  179 

be  to  tax  the  devisee  or  distributee  indirectly  for  such 
property  to  an  amount  equal  to  the  amount  of  the 
exemption  here,  and  would  be  contrary  to  the  prin- 
ciple on  which  the  legacy  and  succession  tax  is  based, 
which  is  that  it  is  an  excise  tax  upon  the  privilege 
of  passing  title  to  property  on  the  death  of  its  owner. 
In  order  to  be  valid  the  tax  must  be  levied  by  the 
authority  that  confers  the  privilege  upon  property 
which  passes  by  virtue  of  the  privilege. ' ' 23c 

§  136.  Exemption  Based  on  Relationship  of  Par- 
ties.— Exemptions  are  sometimes  made  because  of  the 
relationship  between  the  decedent  and  the  heir  or 
legatee.  Exemptions  of  this  kind  were  more  numer- 
ous under  the  former  statutes  than  under  the  recent 
ones,  the  tendency  having  been  to  bring  all  persons, 
if  the  valuation  of  the  property  exceeds  a  specified 
amount,  within  the  operation  of  the  law.  The  earlier 
statutes  reached  only  collateral  relatives  and  stran- 
gers, and  exempted  lineal  descendants,  father  and 
mother,  husband  or  wife.24  This  species  of  exemption 

23c  Attorney  General  v.  Barney  (Mass.),  97  N.  E.  750. 

«  In  re  Smith,  5  Dem.  Sur.  (N.  Y.)  90;  Estate  of  Cobb,  14  Misc. 
Rep.  409,  36  N.  Y.  Supp.  448;  Estate  of  Farley,  15  N.  Y.  St.  Rep.  727; 
Will  v.  Seaver,  63  App.  Div.  283,  71  N.  Y.  Supp.  544.  Under  the 
collateral  inheritance  tax  law  of  1885,  it  has  been  held  in  New  York 
that  "lineal  descendants"  include  only  the  direct  descendants  of  the  tes- 
tator or  intestate,  and  do  not  embrace  children  of  big  brothers  and 
sisters:  In  re  Miller,  5  Dem.  Sur.  (N.  Y.)  132,  45  Hun,  244. 

In  Ohio,  bequests  to  nephews  and  nieces  are  exempt  from  the  col- 
lateral inheritance  tax,  but  this  exemption  does  not  extend  to  grand 
nieces  or  to  nephews  of  the  husband  or  wife  of  the  decedent:  Estate  of 
Bates,  7  Ohio  N.  P.  625,  5  Ohio  S.  &  C.  P.  Dec.  547.  Bequests  to 
half-brothers  are  exempt:  Estate  of  Ormsby,  7  Ohio  N.  P.  542,  5  Ohio 
S.  &  C.  P.  Dec.  553. 

In  Pennsylvania,  a  grandmother  is  subject  to  the  collateral  inheritance 
tax:  McDowell  v.  Addams,  45  Pac.  430;  but  step-children  are  not:  Com- 
monwealth v.  Randall,  225  Pa.  197,  73  Atl.  1109. 

Where  a  son  made  a  devise  to  his  mother  and  she  died  first,  leaving 
as  heirs  his  brother  and  sister,  it  has  been  decided,  under  the  statutes 
of  Iowa,  that  the  property  passes  directly  from  the  testator  to  his 


180  INHERITANCE  TAXATION. 

is  not  open  to  objection  on  constitutional  grounds  be- 
cause of  the  discrimination  which  it  works.28 

§  137.  Adopted  Children.— Under  some  of  the  in- 
heritance tax  statutes  adopted  children  are  not  entitled 
to  the  same  favor  or  exemption  that  is  accorded  nat- 
ural children  of  the  decedent.  Although  an  adopted 

brother  and  sister  and  is  subject  to  the  collateral  inheritance  tax:  Estate 
of  Hulett,  121  Iowa,  423,  96  N.  W.  952. 

That  real  estate  devised  by  a  man  to  his  widow  is  not  subject  to  the 
inheritance  tax  in  Montana,  see  Hinds  v.  Wilcox,  2£  Mont.  4,  55  Pac. 
355.  The  statute  of  Illinois  exempting  a  life  estate  in  property  which 
a  man  wills  to  his  wife  does  not  apply  if  she  renounces  the  will  and 
elects  to  take  what  the  law  gives  her:  Connell  v.  Crosby,  210  111.  380, 
71  N.  E.  350.  But  under  the  Tennessee  statute,  exempting  property 
passing  to  the  widow,  it  has  been  held  that  when  a  nonresident  died 
possessed  of  property  in  that  state  which  was  a  part  of  the  residue  of 
his  estate,  one-half  of  which,  he  willed  to  his  widow,  who  elected  to 
take  one-half  of  such  property  in  kind,  such  half  was  not  subject  to 
taxation:  Memphis  Trust  Co.  v.  Speed,  114  Tenn.  677,  88  S.  W.  321, 
citing  Matter  of  James,  144  N.  Y.  6,  38  N.  E.  961. 

A  legacy  to  the  husband  of  the  daughter  of  the  testator  was  exempt 
under  the  New  York  statutes  of  1885,  although  the  daughter  died  before 
the  testator:  In  re  Woolsey,  19  Abb.  N.  C.  232;  In  re  McGarvey,  6  Dem. 
Sur.  (N.  Y.)  145.  And  the  statutes  of  1892,  exempting  a  legacy  to  the 
husband  of  the  daughter  of  a  testator,  applies  to  a  husband  of  a  de- 
ceased daughter,  even  though  he  has  again  married:  Estate  of  Bay,  13 
Misc.  Eep.  480,  35  N.  Y.  Supp.  481.  But  in  Pennsylvania  it  has  been 
decided  that  where,  under  a  statute  exempting  property  passing  by  will 
to  the  wife  or  widow  of  the  son  of  the  person  dying  possessed  thereof, 
a  woman  bequeathed  the  residue  of  her  estate  to  her  daughter  in  law, 
who  was  the  widow  of  her  son,  and  the  widow  remarried  in  the  lifetime 
of  the  testatrix  and  was  still  married  at  the  death  of  the  testatrix,  the 
legacy  was  taxable:  Commonwealth  v.  Powell,  51  Pa.  438. 

The  term  "stranger,"  within  the  meaning  of  a  statute  imposing  a  tax 
on  inheritances  falling  to  "ascendants,  descendants,  collateral  relations, 
and  strangers,  is  intended  to  exhaust  the  whole  category  of  persons  who 
might  be  called  to  the  inheritance,  whether  by  will  or  ab  intestato,  and 
applies  to  all  who  have  not  in  fact  (or  by  law)  the  status  of  legitimate 
ascendants,  descendants,  or  collateral  relations":  Succession  of  Baker, 
129  La.  74,  55  South.  714. 

A  son  in  law  is  a  "stranger,"  and  hence  subject  to  the  tax  imposed 
by  the  United  States  war  revenue  act  of  1898:  King  y.  Eidman,  128 
Fed.  815. 

2*  See  sec.  21,  ante. 


EXEMPTIONS   FROM    TAX.  181 

child  has  the  right  to  inherit,  he  has  been  held  not  a 
child  in  fact,2'  or  "lineal  issue,"  "  so  as  to  be  exempt 
from  the  collateral  inheritance  tax.  In  New  York  the 
word  "children,"  in  the  collateral  inheritance  act  of 
1885,  did  not  include  adopted  children,  and,  prior  to 
the  amendment  of  that  act  in  1887,  a  devise  or  be- 
quest to  an  adopted  child  of  the  testator  was  subject 
to  taxation.28  The  amendment  of  1887,  exempting 
adopted  children  from  the  collateral  inheritance  tax,29 
applies  to  children  adopted  under  proceedings  taken 
in  another  state.30  But  the  amendment  is  not  retro- 
spective in  operation,  and  hence  does  not  exempt  the 
adopted  child  of  one  who  died  before  its  enactment.31 
The  widow  of  an  adopted  son  of  a  testator  is  a 
"widow  of  a  son"  of  the  testator;32  and  a  son  of  an 
adopted  daughter  of  a  testator  is  a  "lineal  descend- 
ant. " S3  In  California,  under  the  act  of  1893,  legacies 

2«  Commonwealth  v.  Nancrede,  32  Pa.  389;  Tharp  v.  Commonwealth, 
58  Pa.  500;  Estate  of  Wayne,  2  Pa.  Co.  Ct.  Rep.  93,  18  Wkly.  Notes 
Gas.  10 ;  Estate  of  Province,  4  Pa.  Dist.  Rep.  591.  This  rule  was  varied, 
by  special  statute,  in  favor  of  Matthias  H.  Henderson:  See  Common- 
wealth v.  Henderson,  172  Pa.  135,  38  Atl.  368. 

27  Kerr  v.  Goldsborough,  150  Fed.  289,  80  C.  C.  A.  177,  construing 
the  United  States  statute,  and  holding  that  an  adopted  child,  entitled  to 
all  rights  of  heirship  of  a  child  born  in  wedlock,  is  a  stranger  within 
the  fifth  class,  not  "lineal  issue"  within  the  first  class. 

28  Estate  of  Miller,  110  N.  Y.  216,  18  N.  E.  139. 
2»  In  re  Surrogate  of  Cayuga  County,  46  Hun,  657. 

so  Estate  of  Butler,  58  Hun,  400,  12  N.  Y.  Supp.  201. 

si  Warrimer  v.  People,  6  Dem.  Sur.  (N.  Y.)  211;  Estate  of  Thompson, 
14  N.  Y.  St.  Rep.  487;  Estate  of  Miller,  110  N.  Y.  216,  18  N.  E.  139, 
holding  that  where,  prior  to  the  passage  of  the  amendatory  act,  the 
surrogate  affirmed  an  appraisement  of  the  estate  of  a  testatrix  and  as- 
sessed the  tax  chargeable  to  the  devisees  and  legatees  under  the  act 
of  1885,  among  whom  was  an  adopted  child,  which  tax  was  not  paid 
until  the  amendment  of  1887  went  into  effect,  the  amendatory  act  did 
not  release  from  liability  for  the  tax. 

82  Estate  of  Duryea,  128  App.  Div.  205,  112  N.  Y.  Supp.  611. 

88  Estate  of  Cook,  187  N.  Y.  253,  79  N.  E.  991.  In  construing  the 
New  York  statutes,  the  court,  in  this  case,  observes:  "In  the  eye  of  the 
law,  therefore,  adopted  children  are  lineal  descendants  of  their  foster 
parent.  They  are  in  the  line  of  descent  from  him  through  the  command 


182  INHERITANCE  TAXATION. 

in  trust  for  the  benefit  of  the  children  of  the  adopted 
daughter  of  a  testator  are  excepted  from  the  provisions 
of  the  law  establishing  a  tax  upon  collateral  inherit- 
ances, bequests,  and  devises.84  And  in  Louisiana 
adopted  children  not  related  by  blood  to  the  person 
from  whom  they  inherit  are  neither  ascendants  nor 
collaterals,  and,  as  they  inherit  under  the  law,  they 
are  not  strangers  to  the  estate,  from  which  it  follows 
that  if  the  inheritance  falling  to  them  is  liable  to  tax- 
ation under  the  acts  of  1904  and  1906,  it  must  be  as 
an  inheritance  falling  to  persons  who  by  article  214 
of  the  Civil  Code  are  given  the  status  of  descendants, 
and  as  thus  classified  it  is  not  liable  to  the  tax  if 
valued  at  less  than  ten  thousand  dollars.85 

§  138.    Persons  to  Whom  Decedent  Stood  as  Parent. 

In  addition  to  the  exemptions  in  favor  of  children 
born  in  lawful  wedlock  and  children  by  adoption,  an 
exemption  is  also  made  in  favor  of  "any  person" 
to  whom  the  decedent  for  not  less  than  ten  years  prior 
to  the  transmission  "stood  in  the  mutually  acknowl- 
edged relation  of  a  parent."  The  words  "mutually 
acknowledged"  are  equivalent  to  "mutually  recog- 
nized." The  exemption  is  not  confined  to  illegitimate 
children  of  the  decedent ;  indeed,  the  fact  of  their 
being  his  offspring  is  an  immaterial  circumstance. 
The  exemption  is  "intended  to  have  a  broader  scope; 

of  the  statute,  the  same  as  if  that  line  had  been  established  by  nature. 
The  legislature  created  the  relation  and  extended  it  to  the  right  of  in- 
heritance, not  only  as  between  the  foster  parent  and  the  adopted  child, 
but  also  as  between  the  children  of  the  adopted  child  and  the  foster 
parent.  We  think  the  right  of  succession  by  M.  was  subject  to  taxation 
at  the  same  rate  as  if  his  mother  had  sprung  from  the  loins  of  the 
testator." 

In  the  prior  case  of  Estate  of  Fisch,  34  Misc.  Rep.  146,  69  N.  Y. 
Supp.  493,  it  is  affirmed  that  the  exemption  accorded  an  adopted  child 
does  not  inure  to  its  issue. 

s*  Estate  of  Winchester,  140  Cal.  468,  74  Pac.  10. 

«»  Succession  of  Frijalo,  123  La.  71,  48  South.  652. 


EXEMPTIONS  FROM   TAX.  183 

to  include,  among  others,  those  cases,  not  infrequent, 
where  a  person  without  offspring,  needing  the  care 
and  affection  of  someone  willing  to  assume  the  posi- 
tion of  a  child,  takes,  without  formal  adoption,  a 
friend  or  relative  into  his  household,  standing  to  such 
person  in  loco  parentis,  or  as  a  parent,  and  receives 
in  return  filial  attention  and  service.  The  fixing  of 
a  period  of  ten  years,  during  which  the  relation  must 
continue  in  order  to  entitle  such  person  to  the  benefit 
of  the  exemption,  is  a  safeguard  against  imposition, 
and  when  for  that  period  this  relation  has  been  mutu- 
ally acknowledged,  the  case  is  fairly  brought  within 
the  policy  upon  which  children  are  exempted  from  the 
imposition  of  a  tax."38 

The  fact  that  the  person  was,  at  the  inception  of 
the  mutually  acknowledged  relation,  an  adult  did  not, 

se  Estate  of  Beach,  154  N.  Y.  242,  48  N.  E.  516;  Estate  of  Davis, 
184  N.  Y.  299,  77  N.  E.  259;  Estate  of  Thomas,  3  Misc.  Rep.  388,  24 
N.  Y.  Supp.  713;  Estate  of  Stilwell,  34  N.  Y.  Supp.  1123;  Estate  of 
Lane,  39  Misc.  Eep.  522,  80  N.  Y.  Supp.  381. 

"The  word  'mutual'  in  this  statute  has  no  abstruse  signification.  It 
means  and  requires  reciprocity  of  action,  correlation  and  interdepend- 
ence, and  finds  its  best  illustration  and  application  in  relations  existing 
between  parents  and  children,  which  are  always  mutual":  Estate  of 
Butler,  58  Hun,  400,  12  N.  Y.  Supp.  201. 

"The  use  of  the  words  'mutually  acknowledged  relation*  was  intended 
to  embrace  a  class  of  persons  who,  while  not  in  fact  sustaining  the  blood 
relation  of  parent  and  child,  had  assumed  and  adopted  that  conven- 
tional relation,  by  mutually  acknowledging  it  by  their  method  of  living, 
and  mutual  recognition  of  that  relation  for  ten  years" :  Estate  of  Nichols, 
91  Hun,  134,  36  N.  Y.  Supp.  538. 

In  the  following  cases  it  was  held  that  the  relation  had  not  been 
established:  Estate  of  Moulton,  11  Misc.  Rep.  694,  33  N.  Y.  Supp.  578, 
holding  that  there  was  no  "dependence  by  the  nieces  upon  their  uncle"; 
Estate  of  Sweetland,  20  N.  Y.  Supp.  310;  Estate  of  Birdsall,  22  Misc. 
Rep.  180,  49  N.  Y.  Supp.  450;  Estate  of  Deutsch,  107  App.  Div.  192, 
&5  N.  Y.  Supp.  65. 

In  the  last  two  cases  cited,  the  circumstance  that  the  legatees  re- 
ferred to  the  testator  or  testatrix  as  "uncle"  or  "aunt,"  and  the  tes- 
tator referred  to  them  as  "nieces,"  was  held  a  material  circumstance. 
But  in  Estate  of  Davis,  184  N.  Y.  299,  77  N.  E.  259,  the  fact  that  the 
child  did  not  address  her  uncle  (the  testator)  and  aunt  as  father  and 


184  INHERITANCE  TAXATION. 

as  the  New  York  statute  formerly  stood,  exclude  him 
from  the  benefit  of  the  exemption ; 8T  but  the  statute  has 
been  amended  to  provide  that  the  relationship  must 
begin  at  or  before  the  fifteenth  birthday  and  continue 
for  ten  years  thereafter.3*  The  statute  has  also  been 
amended  so  as  to  require  that  ''the  parents  of  such 
child  shall  be  deceased  when  such  relationship  com- 
menced." So  that  the  exemption,  as  amended  in  1905, 
excludes  persons  from  its  benefits  unless  the  relation- 
ship was  formed  in  their  tender  years  and  after  the 
decease  of  their  parents.39 

The  amendment  of  the  New  York  statute  in  1887  to 
exempt  persons  who  had  stood  for  more  than  ten  years 
in  the  mutually  acknowledged  relation  of  children  to 
decedents,  was  not  retrospective  in  operation,  so  as  to 
exempt  a  legatee  where  the  testator  had  died  before 
the  passage  of  the  amendatory  act,  but  proceedings 
were  not  instituted  for  the  collection  of  the  tax  until 
after  the  passage.40 

§  139.  Illegitimate  Children. — Where  the  law  pro- 
vides that  a  mother  and  her  illegitimate  child  shall  en- 
mother,  nor  they  call  her  daughter,  was  regarded  as  of  small  importance. 
To  the  same  effect  is  Estate  of  Spencer,  4  N.  Y.  Supp.  395,  where  the 
child  always  addressed  the  testatrix  as  "auntie";  and  Estate  of  Wheeler, 
1  Misc.  Rep.  450,  22  N.  Y.  Supp.  1075,  where  the  testator  referred  to 
the  child  in  his  will  as  "our  friend." 

A  step-parent  does  not  necessarily  stand  in  the  relation  of  a  parent, 
within  the  meaning  of  the  statute,  to  step-children:  Estate  of  Capron, 
10  N.  Y.  Supp.  23. 

Children  of  the  excepted  persons  were  held  not  within  the  exemption 
in  Estate  of  Bird,  11  N.  Y.  Supp.  895;  Estate  of  Moore,  90  Hun,  162, 
35  N.  Y.  Supp.  782. 

37  Estate  of  Beach,  154  N.  Y.  242,  48  N.  E.  516. 

«s  Estate  of  Davis,  184  N.  Y.  299,  77  N.  E.  259. 

8»  Estate  of  Wheeler,  115  App.  Div.  616,  100  N.  Y.  Supp.  1044; 
Estate  of  Stebbins,  52  Misc.  Rep.  438,  103  N.  Y.  563'  (where  the  persons 
claiming  the  exemption  were  step-daughters  of  the  decedent,  and  their 
father  was  still  living) ;  Estate  of  Harder,  124  App.  Div.  77,  108  N.  Y. 
Supp.  154  (holding  that  both  parents  must  be  deceased). 

«o  Estate  of  Ryan,  3  N.  Y.  Supp.  136. 


EXEMPTIONS  FROM   TAX.  185 

joy  all  the  rights  and  privileges  one  to  the  other  in  the 
same  manner  and  to  the  same  extent  as  if  the  child 
had  been  born  in  lawful  wedlock,  an  illegitimate  child, 
inheriting  from  its  mother,  is  not  required  to  pay  a 
collateral  inheritance  tax.41  Where  a  father  has 
acknowledged  his  illegitimate  child  in  the  manner  pre- 
scribed by  statute,  an  inheritance  passing  from  him 
to  the  child  is  not  subject  to  the  collateral  inherit- 
ance tax.42  And  children  legitimated  by  the  sub- 
sequent marriage  of  their  parents  are  not  liable  to 
that  tax  on  property  passing  to  them  from  their 
father.48 

§  140.  Nation,  State  or  Municipality. — It  has  been 
decided  that  a  legacy  to  the  United  States  is  subject 
to  state  inheritance  taxation,  and  cannot  be  claimed 
exempt  on  the  ground  that  the  tax  is  on  United  States 
property,  nor  on  the  ground  that  the  statute  imposes 
taxes  upon  transfers  "to  persons  or  corporations  ex- 
empt by  law  from  taxation. "  **  It  has  also  been  decided 

*i  Commonwealth  v.  Mackey,  222  Pa.  613,  72  Atl.  250. 

42  Wirringer  v.  Morgan,  12  Cal.  App.  26,  106  Pac.  425.  In  Galbraith 
v.  Commonwealth,  14  Pa.  258,  it  is  decided  that  where  a  man  died 
leaving  collateral  heirs,  and  an  illegitimate  son  who  was  legitimated  by 
an  act  of  the  legislature  which  was  not  approved  until  the  day  after 
the  death  of  the  father,  the  entire  estate  was  subject  to  the  collateral 
inheritance  tax. 

And  in  Commonwealth  v.  Ferguson,  137  Pa.  595,  10  L.  B.  A.  240,  20 
Atl.  870,  where  an  act  of  the  legislature  was,  in  respect  to  an  illegiti- 
mate son,  an  act  of  adoption,  not  of  legitimation,  it  was  held  that  a 
devise  to  him  from  his  father  was  subject  to  the  collateral  inheritance 
tax. 

48  Commonwealth  v.  Gilkeson,  18  Pa.  Super.  Ct.  516. 

44  United  States  v.  Perkins,  163  U.  S.  625,  41  L.  Ed.  287,  16  Sup.  Ct. 
Rep.  1073,  affirming  Estate  of  Merriam,  141  N.  Y.  479,  36  N.  E.  505. 
But  in  Hooper  v.  Shaw,  176  Mass.  190,  57  N.  E.  361,  it  is  held  that  a 
legacy  paid  to  the  United  States  under  the  statute  of  June  13,  1898, 
chapter  448,  sections  29,  30,  is  to  be  deducted  before  paying  the  state 
succession  tax  under  the  statute  of  1891,  chapter  425.  In  the  course 
of  the  opinion  the  court  uses  this  language: 

"Whatever  the  nature  of  the  state  succession  tax,  it  is  admitted  and  is 
obvious  that  the  value  of  the  property  concerned  is  made  the  measure 


186  INHERITANCE  TAXATION. 

that  a  bequest  to  a  city  is  not  exempt  from  a  legacy 
tax.48  But  if  the  property  of  a  state  or  municipality, 
held  for  public  purposes,  is  impliedly  exempt  from 
taxation,  and  for  obvious  reasons  this  is  the  general 
rule,  then  it  is  not  illogical  to  hold,  and  it  has  been 
so  held,  that  a  testamentary  gift  to  a  city  for  a  public 
use,  such  as  a  library  building,  is  exempt  from  the 
inheritance  tax;46  and  that  a  bequest  to  a  city  and 
county  for  a  hospital,  and  to  the  regents  of  the  state 
university  for  an  auditorium,  is  also  exempt.47  Gifts 
of  this  nature  might  well  be  regarded  as  exempt  as 
bequests  for  charitable  or  educational  purposes.  In 
fact,  it  has  been  decided  that  a  legacy  to  a  city  or 
town  for  the  establishment  and  maintenance  of  a  free 
public  library  for  the  use  of  the  inhabitants  of  the 
municipality,  and  for  the  erection  of  a  library  build- 
ing and  town  hall,  is  exempt  where  the  statute  makes 
an  exemption  of  bequests  to  educational  or  charitable 
institutions.48 

of  the  tax.  This  appears  from  the  words  of  the  act,  which  also  show 
at  what  moment  the  value  is  to  be  taken.  The  words  are  'property 
....  which  shall  pass  ....  to  any  person.'  Without  throwing  doubt 
upon  the  power  of  the  state  to  adopt  a  harsher  rule,  such  as  has  been 
applied  by  some  of  the  surrogates  in  New  York,  we  are  of  opinion  that 
these  words  most  naturally  signify  the  property  which  the  legatee  ac- 
tually would  get  were  it  not  for  the  state  tax  imposed  by  the  sentence 
in  which  the  words  occur:  See  In  re  Merriam,  141  N.  Y.  479,  484,  36 
N.  E.  505;  S.  C.,  sub  nom.  United  States  v.  Perkins,  163  U.  S.  625,  630, 
41  L.  Ed.  287,  16  Sup.  Ct.  Rep.  1073.  It  already  has  been  decided  upon 
this  ground  that  expenses  of  administration  are  to  be  deducted :  Callahan 
v.  Woodbridge,  171  Mass.  595,  599,  600,  51  N.  E.  176." 

«  Estate  of  Hamilton,  148  N.  Y.  310,  42  N.  E.  717;  Estate  of  Mc- 
Kennan,  25  S.  D.  369,  126  N.  W.  611,  reversed,  (S.  D.)  130  N.  W.  33. 
In  the  New  York  case  it  is  held  that  the  provision  in  the  collateral  in- 
heritance tax  law  of  1887,  exempting  bequests  to  the  "societies,  corpo- 
rations and  institutions  now  exempted  by  law  from  taxation,"  was  not 
intended  to  apply  to  bequests  to  municipal  corporations.  As  to  exemp- 
tion of  state,  see  Estate  of  Graves,  66  App.  Div.  267,  72  N.  Y.  Supp.  815. 

««  Estate  of  Thrall,  157  N.  Y.  46,  51  N.  E.  411. 

4T  Estate  of  Macky,  46  Colo.  79,  23  L.  B.  A.,  N.  S.,  1207,  102  Pac. 
1075. 

48  Town  of  Essex  v.  Brooks,  164  Mass.  79,  41  N.  E.  119. 


EXEMPTION  OF  CHARITIES.  187 

CFEAPTEB  IX. 
EXEMPTION  OP  CHARITIES. 

§  145.  Charitable    Uses    and    Institutions,    in    General. 

§  146.  Foreign    Charitable    Institutions,    in    General. 

§  147.  Foreign    Charities — Constitutionality    of    Discrimination. 

§  148.  Educational    Institutions. 

§  149.  Eeligious   Institutions. 

§  150.  Institutions  for  Support   of  the   Aged  or  Indigent. 

§  151.  Hospitals  and  Infirmaries. 

§  152.  Cemetery  Association. 

§  153.  Masses  for  Repose  of  Souls. 

§  154.  Societies  for  Prevention  of  Cruelty. 

§  145.  Charitable  Uses  and  Institutions,  in  Gen- 
eral.— A  few  of  the  inheritance  tax  statutes  make  no 
exemption  in  favor  of  charities,  or  institutions  of  a 
benevolent,  educational,  or  religious  character.  In 
holding  charities  subject  to  inheritance  taxation, 
where  the  statute  does  not  expressly  confer  an  exemp- 
tion, the  courts  argue  that  the  tax  is  on  the  transmis- 
sion, or  is  a  diminution  of  the  amount  that  would 
otherwise  pass,  and  that  it  is  not  a  tax  on  the  property 
of  the  charity.  Hence  it  is  affirmed  that  such  a  tax 
is  not  against  public  policy  because  aimed  at  a  fund 
given  to  a  charitable  or  educational  purpose,  nor  is  it 
forbidden  by  a  general  law  that  the  property  of  a 
charity  is  exempt  from  taxation.1  This  line  of  rea- 

i  Seavell  v.  Arnold,  131  Ky.  426,  115  S.  W.  232;  Estate  of  Finnen, 
196  Pa.  72,  46  Atl.  269;  Miller  v.  Commonwealth,  27  Gratt.  (Va.) 
110.  Said  the  Kentucky  court,  in  the  above  case,  "the  tax  is  not 
levied  upon  the  fund,  but  upon  its  transmission,  and  hence  the 
argument  that  it  is  against  the  policy  of  the  law  to  levy  a  tax 
upon  a  fund  devised  to  a  public  school  has  no  bearing  upon  the 
case  at  bar,  for  the  reason  that  this  fund  does  not  become  a  fund 
devoted  to  the  maintenance  of  a  school  until  the  law  relative  to  its 
transmission  has  been  complied  with.  The  tax  must  be  paid  before 
the  fund  in  question  can  become  the  property  of  the  school  or  be 
devoted  to  educational  purposes." 

And  in  the  above  Pennsylvania  case  the  court  said:  "It  is  very 
manifest  from  the  language  of  the  statute  that  the  subject  of  the 


188  INHERITANCE  TAXATION. 

soning  is  in  harmony  with  the  general  disposition 
of  the  judicial  mind  to  bring  all  transfers  of  property 
within  the  operation  of  the  inheritance  tax  law  unless 
the  exemption  is  unmistakably  pronounced  by  the 
legislature. 

The  majority  of  the  statutes  expressly  exempt  trans- 
missions to  certain  classes  of  charities  from  inherit- 
ance taxation,2  but  in  some  of  the  states  a  tendency  is 

taxation  enacted  is  the  whole  estate  or  interest  that  passes  to  the 
persons  who  are  the  recipients,  and  the  duty  imposed  is  five  per 
cent  of  the  whole  amount,  and  there  can  be  no  discharge  from  the 
liability  for  the  amount  of  the  same  except  by  actual  payment  of 
the  whole  of  the  tax.  There  is  no  kind  of  exception,  qualification, 
condition  or  reservation  as  to  what  it  is  that  is  the  subject  of  the 
tax.  It  is  the  whole  of  the  estate  that  passes.  There  is  no  ex- 
emption from  the  tax  in  favor  of  charities.  That  which  the  legatee 
gets  and  keeps  is  the  aggregate  sum  bequeathed,  less  the  amount 
of  the  tax.  The  tax  must  be  retained  by  the  person  who  has  the 
decedent's  property  in  charge.  It  is  therefore  not  a  tax  upon  the 
property  or  money  bequeathed,  but  a  diminution  of  the  amount 
that  otherwise  would  pass  under  the  will  or  other  conveyance,  and 
hence  that  which  the  legatee  really  receives  is  not  taxed  at  all. 
It  is  that  which  is  left  after  the  tax  has  been  taken  off.  It  is 
only  imposed  once,  and  that  is  before  the  legacy  has  reached  the 
legatee  and  before  it  has  become  his  property.  If  the  tax  were  a 
continuing  charge  imposed  year  by  year  after  the  ownership  of  the 
legacy  has  become  vested  in  the  legatee,  there  would  then  be  room 
for  the  claim  that  it  is  free  because  of  its  charitable  character. 
Being  held  for  charitable  purposes,  it  would  come  within  the  de- 
scription of  property  exempted  from  taxation  for  that  reason.  But 
it  is  quite  clear  that  it  cannot  have  the  benefit  of  that  privilege 
while  it  is  in  a  state  of  transition  and  before  it  has  become  ulti- 
mately vested  in  the  possession  of  the  owner." 

2  Baleh  v.  Attorney  General,  174  Mass.  144,  54  N.  E.  490;  Carter 
v.  Whitcomb,  74  N.  H.  482,  17  L.  R.  A.,  N.  S.,  733,  69  Atl.  779; 
Estate  of  Vassar,  58  Hun,  378,  12  N.  Y.  Supp.  203;  Estate  of  Howell, 
34  Misc.  Eep.  40,  69  N.  Y.  Supp.  505;  Estate  of  Grouse,  34  Misc. 
Rep.  670,  70  N.  Y.  Supp.  731. 

The  German  Benevolent  Society  of  San  Francisco  is  not  subject  to 
the  inheritance  tax:  Estate  of  Fretz,  5  Cof.  Pro.  432. 

"The  organized  charities  and  benevolent  agencies  which  actually 
relieve  human  misery,  and  labor  in  unselfish  devotion  to  improve 
the  moral  and  physical  condition  of  mankind,  are  alike  the  fruits 
and  aids  of  good  government,  and  to  exempt  their  property — usually 
the  gifts  of  the  benevolent — from  the  burdens  of  taxation  is  scarcely 


EXEMPTION  OP  CHARITIES.  189 

observable  toward  restricting  the  exemption  within 
narrower  bounds  than  those  formerly  set.* 

The  exemption  under  the  Massachusetts  statute  of 
"charitable,  educational,  or  religious  societies  or  in- 
stitutions, the  property  of  which  is  exempt  by  law 
from  taxation,"  is  confined  to  societies  or  institu- 
tions the  property  of  which  is  exempt  from  taxation 
by  the  laws  of  that  state.*  But  if  a  bequest  is  to  an 
institution  whose  property  is  generally  exempt  from 

less  the  duty  than  the  privilege  of  the  enlightened  legislator.  Clearly 
this  exemption  should  be  placed  upon  broad,  equitable  grounds, 
quite  above  the  injurious  imputations  sometimes  resulting  from  in- 
dividual or  special  exemptions.  We  suppose  this  spirit  prevailed  in 
framing  the  exemptions  relating  to  these  charities  and  benevolent 
agencies":  Estate  of  Huntington,  168  N.  Y.  399,  61  N.  E.  643,  per 
Justice  Landon. 

In  this  case  the  New  York  court  of  appeals  holds  that  the  pro- 
visions of  the  tax  law  of  1896,  exempting  the  property  of  charitable 
corporations  and  associations  from  taxation,  supersede  and  by  im- 
plication repeal  the  provisions  of  all  special  acts  exempting  the 
property  of  such  corporations  and  associations,  and  legacies  to  them, 
as  well  as  to  all  such  corporations  and  associations  claiming  ex- 
emptions under  subdivision  7,  vesting  after  chapter  382  of  the  Laws 
of  1900,  amending  article  10  of  the  tax  law,  relating  to  taxes  upon 
transfers  of  property,  took  effect,  are  subject  to  the  transfer  tax. 
See,  also,  Estate  of  Howell,  34  Misc.  Hep.  40,  69  N.  Y.  Supp.  505. 

None  of  the  New  York  enactments  relating  to  bequests  for  chari- 
table purposes  have  brought  within  the  exemption  gifts  to  a  person. 
The  addition  of  the  word  "association"  in  the  general  exemption 
section  does  not  extend  the  application  to  a  bequest  to  trustees: 
Estate  of  Graves,  66  App.  Div.  267,  72  N.  Y.  Supp.  815. 

A  bequest  to  a  charitable  corporation  is  taxable  unless  the  pro- 
visions of  its  charter  or  a  special  enactment  shows  an  exemption: 
Estate  of  Kavanaghs,  6  N.  Y.  Supp.  669.  But  the  rule  that  statutes 
of  exemption  are  to  be  strictly  construed  does  not  require  that 
only  such  societies  be  deemed  exempt  as  are  declared  to  be  by  their 
charters;  it  is  enough  if  the  society  claiming  the  exemption  belongs 
to  a  class  exempted  by  general  statute:  Estate  of  Miller,  5  Dem.  Sur. 
(N.  Y.)  132. 

3  Carter  v.  Whitcomb,  74  N.  H.  482,  17  L.  R.  A.,  N.  S.,  733,  69 
Atl.  779;  Estate  of  Grouse,  34  Misc.  Rep.  670,  70  N.  Y.  Supp.  731. 

*  Minot  v.  Winthrop,  162  Mass.  113,  26  L.  R.  A.  259,  38  N.  E. 
512;  Rice  Y.  Bradford,  J80  Mass.  545,  63  N.  E.  7,  applying  the  rule 
to  a  bequest  to  Bowdoin  College  in  Maine. 


190  INHERITANCE  TAXATION. 

taxation,  it  is  not  material  whether  or  not  the  particu- 
lar gift,  when  in  the  hands  of  the  institution,  will  be 
exempt  from  yearly  taxation  under  general  laws.5 
And  the  fact  that  the  society  may  hold  some  property 
which  is  not  used  directly  in  carrying  on  its  charitable 
work,  and  therefore  is  subject  to  general  taxation, 
does  not  preclude  it  from  claiming  exemption  from  the 
inheritance  tax.8 

Legislative  enactments  exempting  transfers  to  chari- 
ties are  given  a  prospective  operation;  they  are  not 

B  First  Universalist  Soc.  v.  Bradford,  185  Mass.  310,  70  N.  E.  204; 
Carter  v.  Whitcomb,  74  N.  H.  482,  17  L.  R.  A.,  N.  S.,  733,  69  Ati. 
779. 

«  Carter  v.  Whitcomb,  74  N.  H.  482,  17  L.  B.  A.,  N.  S.,  733,  69 
Atl.  779.  To  quote  from  this  case:  "Most  charitable  institutions 
whose  property  'is  devoted  exclusively  to  the  uses  and  purposes  of 
public  charity,'  and  is  exempt  from  taxation,  may  own  property 
not  exclusively  devoted  to  charity  which  is  subject  to  the  general 
tax  burden.  The  use  that  is  made  of  the  property  determines  the 
question  of  its  taxability In  consideration  of  public  bene- 
fits conferred  by  such  establishments,  and  in  view  of  the  fact  that 
their  property  is  substantially  used  directly  in  the  promotion  of 
public  charity,  is  unproductive  of  profit  or  gain,  and  is  not  when 
eo  used  taxable,  it  was  the  policy  of  the  legislature  to  exempt  them 
from  the  burden  of  the  inheritance  tax.  If  their  general  property 
is  exempt  from  taxation  under  existing  statutes,  general  or  special, 
bequests  to  them  are  not  taxable  merely  because  it  appears  that 
they  own  incidentally  property  that  is  taxable.  Nor  does  it  appear 
that  the  legislature  intended  that  a  legacy  to  a  charitable  association 
should  be  subject  to  the  succession  tax  if;  when  received,  it  might 
be  invested  in  taxable  property.  The  sole  test  suggested  by  the 
language  of  the  statute  in  its  application  to  the  subject  matter 
is  to  ascertain  whether  the  legatee  is  a  charitable,  educational,  or 
religious  society,  whose  property,  when  used  exclusively  in  carrying 
out  the  purposes  of  the  association,  is  exempt  from  taxation.  It 
is  the  character  of  the  institution,  the  purposes  it  was  organized  to 
accomplish,  and  its  liability  or  nonliability  to  taxation  from  property 
devoted  to  those  purposes,  that  determine  whether  it  falls  within 
or  without  the  exception  provided  in  the  inheritance  tax  law.  This 
result  accords  with  the  view  adopted  by  the  court  in  First  Univer- 
talist  Soc.  v.  Bradford,  185  Mass.  310,  70  N.  B.  204,  in  which  a 
construction  was  given  to  a  statute  of  that  state  which  is  identical 
with  the  statute  in  question.  With  reference  to  the  clause  under 
consideration,  the  court  says:  'But  we  are  of  opinion  that  the  ex- 


EXEMPTION  OF  CHARITIES.  191 

retrospective  so  as  to  exempt  bequests  subject  to  the 
inheritance  tax  at  the  time  of  the  death  of  the  testa- 
tor.7 

"A  charity,  in  a  legal  sense,  may  be  defined  as  a  gift, 
to  be  applied  consistently  with  existing  laws,  for  the 
benefit  of  an  indefinite  number  of  persons,  either  by 
bringing  their  hearts  under  the  influence  of  education 
or  religion,  by  relieving  their  bodies  from  disease, 
suffering  or  constraint,  by  assisting  them  to  establish 
themselves  for  life,  or  by  erecting  or  maintaining  pub- 
lic buildings  or  works  or  otherwise  lessening  the  bur- 
dens of  government.  It  is  immaterial  whether  the 
purpose  is  called  charitable  in  the  gift  itself,  if  it  is 
so  described  as  to  show  that  it  is  charitable  in  its 
nature. " 8  It  has  always  been  the  policy  of  the  law 
to  uphold  charitable  bequests  and  give  effect  to  them 

o  nipt  ion  depends  upon  the  question:  Is  the  society  or  institution 
one  whose  property  is  generally  exempt  from  taxation?  and  that 
the  question  is  not:  Is  the  property  which  passes  to  the  society 
or  institution  one  which  will  be  exempt  from  yearly  taxation  under 
general  laws?'  This  decision  was  rendered  in  1904;'  and,  as  our 
inheritance  tax  law  of  1905  was  evidently  copied  from  the  Mas- 
sachusetts statute,  it  is  not  improbable  that  that  construction  of 
the  exception  was  understood  by  the  legislature  and  adopted  as  a 
part  of  the  statute:  Mann  v.  Carter,  74  N.  H.  345,  15  L.  B.  A.,  N. 
8.,  150,  68  Atl.  130.  If  the  legatee  would  be  exempt  from  taxa- 
tion upon  property  directly  devoted  to  its  public  charity,  it  is  not 
subject  to  the  inheritance  tax,  though  it  in  fact  may  own  taxable 
property  at  the  death  of  the  testatrix,  and  may  intend  to  invest 
the  proceeds  of  the  legacy  in  taxable  property." 

The  New  Hampshire  statute  was  amended  in  1907  so  as  to  restrict 
the  exemption. 

i  Sherrill  v.  Christ  Church,  121  N.  Y.  701,  25  N.  E.  50;  Estate 
of  Wolfe,  2  Con.  600,  15  N.  Y.  Supp.  539.  See  sec.  36,  ante. 

.•  Jackson  v.  Phillips,  96  Mass.  (14  Allen)  539;  Estate  of  Lennon, 
152  Cal.  327,  125  Am.  St.  Rep.  58,  14  Ann.  Gas.  1024,  92  Pac.  870; 
Estate  of  Graves,  242  111.  23,  134  Am.  St.  Bep.  302,  17  Ann.  Cas. 
137,  24  L.  B.  A.,  N.  S.,  283,  89  N.  E.  672. 

.  The  status  of  a  corporation,  as  charitable  or  otherwise,  is  to  be 
determined  by  the  act  of  incorporation,  not  by  proof  of  what  it  has 
assumed  to  do:  Estate  of  White,  118  App.  Div.  869,  103  N.  Y.  Supp. 
688;  Estate  of  Moses,  138  App.  Div.  525,  123  N.  Y.  Supp.  443,  447. 


192  INHERITANCE  TAXATION. 

whenever  possible,  and  because  the  statutes  exempt 
them  from  the  inheritance  tax  is  no  reason  for  de- 
parting from  or  modifying  this  ancient  rule  of  con- 
struction favoring  charitable  gifts.9 

In  determining  what  is  a  charity,  so  that  a  gift  to 
it  will  be  exempt  from  inheritance  taxation,  the  law 
should  be  liberally  construed  to  promote  the  benevo- 
lent purpose  of  the  exemption.1*  However,  to  ascer- 
tain whether  an  institution  or  purpose  is  charitable 
within  the  meaning  of  the  inheritance  tax  statute, 
resort  should  ordinarily  be  had  to  the  doctrine  respect- 
ing charitable  uses;  the  objects  to  which  the  institu 
tion  is  bound  to  devote  its  property  must  generally 
be  charitable  within  such  doctrine,  if  it  would  justly 
lay  claim  to  exemption  from  inheritance  taxation.11 
But  the  fact  that  an  institution  is  charitable  within 
the  doctrine  of  charitable  uses  will  not  necessarily 
exempt  gifts  to  it  from  the  inheritance  tax,  for  in  some 
of  the  exemptions  the  term  "charitable"  has  a  more 
restricted  meaning  than  is  given  it  by  courts,  in  their 
desire  to  promote  benevolent  disposition,  in  the  law 
relating  to  charitable  uses.12 

It  has  been  decided  that  the  "Woman's  Christian 
Temperance  Union"  is  a  benevolent  charitable  institu- 

»  Estate  of  Graves,  242  111.  23,  134  Am.  St.  Rep.  302,  17  Ann.  Gas. 
137,  24  L.  B.  A.,  N.  S.,  283,  89  N.  E.  672. 

10  Estate  of  Spangler,  148  Iowa,  333,  127  N.  W.  625. 

To  quote  from  Justice  Ostrander  in  Estate  of  Moore,  66  Misc.  Eep. 
116,  122  N.  Y.  Supp.  828:  "I  do  not  think  the  legislature  ever  in- 
tended to  tax  benevolently  inclined  people  for  the  privilege  of  mak- 
ing legacies  designed  to  relieve  the  state  of  its  burdens.  No  more 
effectual  way  of  stopping  such  benevolence  could  be  well  devised. 
While  the  courts  have  no  power  to  prevent  the  legislature  from  estab- 
lishing such  a  ....  policy,  they  should  not  by  construction  im- 
pute such  an  intention  in  cases  where  it  does  not  clearly  appear." 

11  Estate  of  Landis,  66  N.  J.  Eq.  291,  56  Atl.  1039. 

*•  Trustees  of  Young  Men's  Christian  Assn.  v.  Paterson,  61  N.  J. 
L.  420,  39  Atl.  655;  Estate  of  McCormick,  71  Misc.  Kep.  95,  127  N. 
Y.  Supp.  493. 


EXEMPTION  OP  CHARITIES.  193 

tion  exempt  from  the  transfer  tax ; "  and  also  that  a 
Masonic  lodge  is  a  charitable  institution  exempt  from 
inheritance  taxation.1*  A  bequest  to  a  corporation 
organized  to  maintain  a  home  for  friendless  children 
and  children  intrusted  to  it  by  parents  or  committed 
by  competent  authority  has  been  held  exempt  from 
the  New  York  transfer  tax.15  And  a  bequest  of  money 
to  erect  in  a  public  park  a  drinking  fountain  for  horses, 
in  connection  with  a  statue  of  a  certain  horse,  the 
statue  to  bear  the  donor's  name  and  the  name  of  the 
horse,  with  the  record  of  the  speed  which  the  horse 
once  made,  has  been  held  exempt  from  the  Illinois  in- 
heritance tax.16  In  New  York  it  has  been  decided 
that  the  bank  clerks'  mutual  benefit  association,  in- 
corporated under  the  act  of  1848,  takes  a  bequest  sub- 
ject to  the  inheritance  tax ; 17  also  that  a  bequest  to 
Cooper  Union  is  not  exempt.18 

§  146.  Foreign  Charitable  Institutions,  in  General. 
It  has  been  contended  that  the  exemption  of  charitable 
institutions  from  inheritance  taxation  applies  to  all 
such  institutions,  regardless  of  their  location  within 
or  without  the  state  granting  the  exemption,  for,  it 
is  argued,  the  exemption  is  in  recognition  of  the  benefi- 
cent purpose  of  these  institutions,  and,  inasmuch  as 
the  purpose  is  common  to  them  all,  wherever  located, 
the  exemption  should  be  universal.  But  the  courts 
have  not  yielded  to  this  argument.  They  have  held, 
with  unanimity  it  is  believed,  that,  in  the  absence  of 

is  Estate  of  Moore,  66  Misc.  Eep.  116,  122  N.  Y.  Supp.  828. 

i*  Morrow  v.  Smith,  145  Iowa,  514,  Ann.  Cas.  1912A,  1183,  124  N. 
W.  316. 

IB  Estate  of  Higgins,  55  Misc.  Rep.  175,  106  N.  Y.  Supp.  465. 

i«  Estate  of  Graves,  242  111.  23,  134  Am.  St.  Rep.  302,  17  Ann.  Cas. 
137,  24  L.  R.  A.,  N.  S.,  283,  89  N.  E.  672. 

IT  Estate  of  Jones,  50  Hun,  603,  22  Abb.  N.  C.  50,  2  N.  Y.  Supp. 
671. 

is  Estate  of  Kucielski,  144  App.  Div.  100,  128  N.  Y.  Supp.  768. 
18 


194  INHERITANCE  TAXATION. 

any  language  plainly  indicative  of  a  different  intent, 
the  legislature  must  be  deemed  to  have  made  the  ex- 
ception for  the  benefit  of  its  own  institutions  only,  and 
that  foreign  corporations,  or  institutions  without  the 
state,  must  pay  the  inheritance  tax,  although  exempt 
in  the  state  of  their  domicile,19  and  although  some  of 
their  charitable  work  and  enterprises  are  carried  on 
within  the  state  enforcing  payment  of  the  tax.20 

"We  are  of  the  opinion,"  to  quote  from  the  New 
York  court  of  appeals,  "that  the  statute  of  a  state 
granting  powers  and  privileges  to  corporations  must, 
in  the  absence  of  plain  indications  to  the  contrary,  be 
held  to  apply  only  to  corporations  created  by  the 
state,  and  over  which  it  has  the  power  of  visitation 
and  control.  Such  is  the  natural  interpretation  of  such 

i»  Minot  v.  Winthrop,  162  Mass.  113,  26  L.  R.  A.  259,  38  N.  E.  512; 
Pierce  v.  Stevens,  205  Mass.  219,  91  N.  E.  319;, Davis  v.  Stevens, 
208  Mass.  343,  94  N.  E.  556;  Alfred  University  v.  Hancock,  69  N. 
J.  Eq.  470,  46  Atl.  178;  Estate  of  McCoskey,  6  Dem.  Sur.  (N.  Y.)  438, 
22  Abb.  N.  C.  20,  1  N.  Y.  Supp.  782;  Estate  of  Twigg,  15  N.  Y. 
Supp.  548;  Estate  of  James,  6  Misc.  Eep.  206,  27  N.  Y.  Supp.  288; 
Estate  of  Smith,  77  Hun,  134,  28  N.  Y.  Supp.  476;  Estate  of  Fayer- 
weather,  31  Abb.  N.  C.  287,  30  N.  Y.  Supp.  273;  Estate  of  Taylor, 
80  Hun,  589,  30  N.  Y.  Supp.  582;  Estate  of  Wolfe,  23  Misc.  Rep.  439, 
52  N.  Y.  Supp.  415;  Catlin  v.  Trustees  of  Trinity  College,  113  N.  Y. 
133,  3  L.  R.  A.  206,  20  N.  E.  864;  Estate  of  Balleis,  144  N.  Y.  132, 
38  N.  E.  1007;  Humphreys  Y.  State,  70  Ohio  St.  67,  101  Am.  St.  Rep. 
888,  1  Ann.  Cas.  233,  65  L.  R.  A.  776,  70  N.  E.  957;  Estate  of  Hickok, 
78  Vt.  259,  6  Ann.  Cas.  578,  62  Atl.  724. 

Whether  a  corporation  of  a  foreign  state  may  claim  exemption  in 
New  Jersey  under  the  supplement  of  1898  depends  upon  whether  it 
has  actually  acquired  corporate  powers  for  purposes  and  objects 
which  entitle  to  such  exemption;  that  the  legislation  under  which 
incorporation  was  obtained  permitted  the  acquisition  of  corporate 
powers  for  objects  which  would  have  exempted  will  be  of  no  avail: 
Estate  of  Rothchild,  71  N.  J.  Eq.  10,  63  Atl.  615,  affirmed,  72  N.  J. 
Eq.  425,  65  Atl.  1118. 

20  Humphreys  v.  State,  70  Ohio  St.  67,  101  Am.  St.  Rep.  888,  1  Ann. 
Cas.  233,  65  L.  R.  A.  776,  70  N.  E.  957.  But  it  has  been  held  that 
a  gift  to  a  local  branch  of  the  Salvation  Army  to  be  expended  within 
the  state  for  the  erection  of  a  hall  for  the  branch  and  the  care  of 
sick  and  disabled  members,  is  exempt,  although  the  Salvation  Army 
is  organized  under  the  laws  of  another  state. 


EXEMPTION  OP  CHARITIES.  195 

legislation  in  the  absence  of  a  contrary  intention  ap- 
pearing on  the  face  of  the  act.  The  legislature  in 
such  cases  is  dealing  with  its  own  creations,  whose 
rights  and  obligations  it  may  limit,  define  and  control. 
....  It  is  the  policy  of  society  to  encourage  benevo- 
lence and  charity.  But  it  is  not  the  proper  function 
of  a  state  to  go  outside  of  its  own  limits,  and  devote 
its  resources  to  support  the  cause  of  religion,  educa- 
tion, or  missions  for  the  benefit  of  mankind  at  large. 
The  argument  may  have  force  that  the  state  might, 
consistently  with  its  proper  function,  give  immunity 
from  taxation  to  some  of  the  foreign  corporations  en- 
gaged in  the  work  of  education  or  charity.  But,  how- 
ever this  may  be,  we  are  convinced  that  the  statute 
of  1891  has  no 'application  to  foreign  corporations,  and, 
having  reached  that  conclusion,  our  duty  is  ended. ' ' 21 
This  doctrine  has  been  approved  by  the  New  Hamp- 
shire and  New  Jersey  courts.23 

The  fact  that  a  domestic  corporation  expends  money 
for  charitable  purposes  and  extends  the  field  of  its 
usefulness  beyond  the  boundaries  of  the  state  does  not 
render  it  liable  to  the  inheritance  tax,  under  the  rule 
that  foreign  corporations  do  not  enjoy  the  immunity 

«  Estate  of  Prime,  136  N.  Y.  347,  18  L.  E.  A.  713,  32  N.  E.  1091, 
per  Justice  Andrews. 

22  Alfred  University  v.  Hancock,  69  N.  J.  Eq.  470,  46  Atl.  178; 
Carter  v.  Whitcomb,  74  N.  H.  482,  17  L.  B.  A.,  N.  S.,  733,  69  Atl. 
779. 

In  Estate  of  Jones,  73  N.  J.  Eq.  353,  67  Atl.  1035,  74  N.  J.  Eq. 
447,  70  Atl.  1101,  it  was  held  that  institutions  of  another  state,  whose 
object  was  to  furnish  instruction  to  young  men  destined  for  the  min- 
istry in  a  certain  religious  denomination,  and  a  society  (of  what  state 
does  not  appear)  whose  only  purpose  was  the  extension  of  gospel 
preaching,  were  entitled  to  the  exemptions  provided  by  the  collateral 
inheritance  tax  statute  in  favor  of  religious  institutions  "not  con- 
fined in  their  operations  and  benefactions  to  local  or  state  purposes, 
but  for  the  general  good  of  the  people  interested  therein, — whether 
....  organized  under  the  laws  of  this  state,  or  ....  under  the 
laws  of  some  other  state." 


196  INHERITANCE  TAXATION. 

from  such  tax  that  domestic  corporations  do.28  But 
if  the  principal  purpose  of  an  institution,  though  it  is 
affiliated  with  a  local  concern  existing  within  the 
jurisdiction  imposing  the  tax,  is  to  carry  on  charitable 
operations  abroad,  as  in  the  case  of  a  foreign  mis- 
sionary society  connected  with  a  local  church,  such  an 
institution  is  not  exempt  from  inheritance  taxation.231 

zs  Balch  v.  Attorney  General,  174  Mass.  144,  54  N.  E.  490;  Estate 
of  Lyon,  144  App.  Div.  104,  128  N.  Y.  Supp.  1004,  holding  a  bequest 
to  "the  American  Baptist  Missionary  Union  (Boston,  Mass.)"  was 
to  a  domestic  corporation  and  not  subject  to  the  transfer  tax. 

In  Carter  v.  Story  (N.  H.),  78  Atl.  1072,  the  court— in  holding 
that  a  legacy  to  a  corporation,  chartered  to  promote  foreign  and 
domestic  missions,  to  educate  indigent  young  men,  and  further  other 
religious  charities,  is  exempt  from  the  inheritance  tax,  if  the  cor- 
poration has  not  operated  beyond  the  state  and  desires  to  limit  its 
work  to  the  state — said:  "The  legacies  to  the  Baptist  convention  are 
not  chargeable  with  that  tax  or  burden,  unless,  as  claimed  by  the 
state,  the  convention  holds  the  income  for  the  purpose  of  religious 
and  charitable  uses  in  other  jurisdictions  as  well  as  in  this  state. 
Though  its  corporate  powers  are  broad  enough  to  authorize  the  use  of 
its  funds  in  the  promotion  of  religious  and  charitable  objects  in  other 
states  and  countries,  the  practical  administration  of  its  affairs  may 
show  as  a  matter  of  fact  that  it  devotes  the  whole  or  a  large  part 
of  its  funds  to  local  uses;  and,  if  it  does,  a  legacy  to  it  unlimited 
as  to  the  uses  that  may  be  made  of  it,  except  by  its  corporate  powers, 
is  not  subject  to  the  inheritance  tax,  according  to  the  decision  in 
Carter  v.  Whitcomb,  74  N.  H.  482,  490,  491,  17  L.  B.  A.,  N.  S.,  733, 
69  Atl.  779." 

zsa  Carter  v.  Whitcomb,  74  N.  H.  482,  17  L.  B.  A.,  N.  S.,  733,  69 
Atl.  779.  Said  the  court  in  this  case:  "If  its  charity  is  adminis- 
tered for  the  benefit  of  the  public  within  this  jurisdiction,  it  falls 
within  the  class  which  the  legislature  intended  to  favor  and  encour- 
age. When,  however,  an  auxiliary  body,  like  the  Auxiliary  of  the 
Woman's  Foreign  Missionary  Society,  though  connected  with  a  local 
church  and  existing  within  the  jurisdiction  as  an  association,  seeks 
as  its  principal  object  'the  evangelization  of  heathen  women'  and 
the  raising  of  funds  for  that  purpose  alone,  it  is  difficult  to  discover 
how  the  public  represented  by  the  people  of  this  state  is  benefited  by 
the  supposed  benevolence.  Even  if  there  are  'heathen  women'  in  our 
midst,  this  society  can  do  nothing  for  their  enlightenment  and  civil- 
ization; for,  as  found  in  the  case,  none  of  its  funds  'are  or  can  be 
devoted  to  charitable  objects  within  the  state  of  New  Hampshire.' 
Its  money  may  be  sent,  and  presumably  the  principal  part  of  it  is 
sent,  to  assist  in  the  conversion  of  people  living  in  remote  parts  of 


EXEMPTION  OP  CHARITIES.  197 

§  147.  Foreign  Charities — Constitutionality  of  Dis- 
crimination.— Statutes  denying  foreign  charitable  cor- 
porations exemption  from  inheritance  taxation,  while 
conferring  such  exemption  on  domestic  charitable  cor- 
porations, have  been  attacked  as  unconstitutional,  in 
that  they  unlawfully  discriminate  against  foreign  cor- 
porations, deny  them  the  equal  protection  of  the  law, 
and  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States.  But  corporations  are  not  "citi- 
zens" within  the  meaning  of  the  provision  of  the 
federal  constitution  that  the  citizens  of  each  state  shall 
be  entitled  to  all  the  privileges  and  immunities  of  the 
citizens  of  the  several  states.  And  there  are  substan- 
tial reasons  for  putting  foreign  corporations  in  a  less 
favored  class  than  domestic  corporations,  although 
both  are  engaged  in  the  same  general  purpose — dis- 
pensing charity.  While  no  difference  is  observable 
between  them  as  to  their  general  purpose,  the  sphere 
of  their  operations  and  the  resulting  benefits  obvi- 
ously do  not  coincide.  Moreover,  domestic  corpora- 
tions are  under  the  control  of  the  state  creating  them, 
while  foreign  corporations  are  beyond  its  jurisdiction. 
The  constitutional  objections  to  imposing  an  inherit- 

the  earth  from  their  native  religion  to  that  of  Christianity.  The 
expenditure  of  large  sums  of  money  for  the  enlightenment  upon 
religious  subjects  of  the  natives  of  the  antipodes  evidently  was  not 
one  of  the  objects  the  legislature  intended  to  encourage,  when,  in 
1895,  the  property  of  charitable  associations  'devoted  exclusively  to 
the  uses  and  purposes  of  public  charity'  was  exempted  from  taxation, 
or  when,  in  1905,  legacies  to  such  associations  'in  this  state'  were 
exempted  from  the  inheritance  tax.  The  benefit  to  the  public  of  this 
state  of  such  a  trust  is  so  visionary,  problematical,  and  uncertain 
that  it  cannot  be  deemed  for  the  purposes  of  this  case  a  public  char- 
ity, without  imputing  to  the  legislature  motives  which  it  is  reason- 
ably certain  they  did  not  entertain.  The  state  is  not  itself  a 
charitable  institution,  and  does  not  authorize  its  representatives  to 
expend  the  public  money,  by  exemptions  from  taxation  or  otherwise, 
for  purposes  having  little  or  no  relation  to  the  welfare  of  the  inhab- 
itants of  the  state.  The  purpose  of  such  laws  is  the  acquisition  of 
some  supposed  public  advantage." 


198  INHERITANCE  TAXATION. 

ance  tax  on  foreign  charitable  corporations  and  ex- 
empting domestic  charitable  corporations  therefrom 
are  untenable,2*  although  the  foreign  corporations  are 
to  some  extent  operating  within  the  state.26 

§  148.  v  Educational  Institutions. — Bequests  to  edu- 
cational institutions,  such  as  colleges28  or  public 
schools,27  have  been  subject  to  the  inheritance  tax  in 
some  jurisdictions  where  the  statutes  make  no  excep- 
tion in  favor  of  charitable  or  educational  institutions. 
However,  gifts  for  the  promotion  of  education  are, 
in  a  legal  sense,  charitable,  when  the  element  of  pri- 
vate gain  is  absent.  But  in  order  that  an  educational 
society  may  claim  exemption  from  inheritance  taxa- 
tion as  charity,  it  has  been  said  that  it  will  not  be 
sufficient  to  show  that  the  society  is  incorporated  under 
the  laws  permitting  the  incorporation  of  societies  for 
the  promotion  of  learning;  it  must  be  shown  that  the 

«  Estate  of  Speed,  216  HI.  23,  108  Am.  St.  Eep.  189,  74  N.  E.  809, 
affirmed,  Board  of  Education  of  Kentucky  Annual  Conference  of 
Methodist  Episcopal  Church  v.  Illinois,  203  U.  S.  553,  8  Ann.  Cas. 
157,  51  L.  Ed.  314,  27  Sup.  Ct.  Rep.  171.  Said  the  Illinois  court  in 
this  case,  and  the  language  was  approved  by  the  supreme  court  of  the 
United  States:  "A  clear  distinction  exists  between  domestic  corpora- 
tions and  corporations  organized  under  the  laws  of  other  states. 
Such  corporations  fall  naturally  into  their  respective  classes.  Over 
the  one — that  which  the  state  has  created — the  state  has  certain 
powers  of  control,  and  the  other  is  beyond  its  jurisdiction.  Those 
of  its  own  creation  have  been  endowed  with  corporate  powers  for 
the  purpose  of  subserving  the  interests  of  the  state  and  its  people; 
those  which  have  been  given  life  by  the  laws  of  a  sister  state  have 
entirely  different  ends  and  objects  to  accomplish.  The  law-making 
power  would  find  many  weighty  considerations  authorizing  the  classi- 
fication of  foreign  and  domestic  corporations  into  different  classes, 
and  justifying  the  creation  of  liability  on  the  part  of  foreign  cor- 
porations to  pay  a  tax  on  the  right  to  take  property  by  descent, 
devise  or  bequest,  under  the  laws  of  the  state,  and  at  the  same 
time  leaving  the  right  of  a  domestic  corporation  so  to  take  free  of 
any  such  exaction." 

2«  Humphreys  v.  State,  70  Ohio  St.  67,  101  Am.  St.  Rep.  888,  1 
Ann.  Cas.  233,  65  L.  R.  A.  776,  70  N.  E.  957. 

26  Barringer  v.  Cowan,  55  N.  C.  436. 

27  Leavell  v.  Arnold,  131  Ky.  426,  115  S.  W.  232. 


EXEMPTION  OP  CHARITIES.  199 

property  thereof  is  in  fact  devoted  to  such  purposes, 
and  has  an  educational  character.28 

Educational  corporations  or  institutions  are  ex- 
pressly exempted  by  some  statutes  from  the  inherit- 
ance tax.  When  such  is  the  case,  the  meaning  of  the 
term  ''educational"  is  at  once  brought  in  issue.  The 
courts  have  been  disposed  to  construe  the  word  in  its 
broad  sense.  It  "is  not  used  in  its  meaning  of  instruc- 
tion by  school,  college  or  university,  which  is  a  nar- 
rower and  more  limited  meaning  of  the  word,  but  in 
its  broader  signification  as  the  act  of  developing  and 
cultivating  the  various  physical,  intellectual,  and 
moral  faculties  toward  the  improvement  of  the  body, 
the  mind,  and  the  heart. ' '  n  Hence  a  public  library,30 
art  gallery,31  museum  and  library  of  art,32  the  Young 
Men's  Christian  Association,  the  Young  Women's 

28  Alfred  University  T.  Hancock,  69  N.  J.  Eq.  470,  46  Atl.  178; 
Estate  of  Landis,  66  N.  J.  Eq.  291,  56  Atl.  1039. 

2»  Estate  of  Moses,  138  App.  Div.  525,  123  N.  Y.  Supp.  443.  To 
the  same  effect,  see  Estate  of  Field,  71  Misc.  Rep.  396,  130  N.  Y. 
Supp.  195;  Mount  Hermon  Boys'  School  v.  Gill,  145  Mass.  139,  13 
N.  E.  354. 

In  Estate  of  Crouse,  34  Misc.  Rep.  670,  70  N.  Y.  Supp.  731,  it  is 
said  that  under  Laws  of  1896,  chapter  908,  as  amended  by  Laws  of 
1900,  chapter  382,  a  corporation  is  no  longer  exempt  from  the  trans- 
fer tax,  if  organized  for  educational  purposes  only. 

That  Vassar  College  is  exempt  from  the  inheritance  tax,  see  Estate 
of  Vassar,  127  N.  Y.  1,  27  N.  E.  394. 

In  Estate  of  Landis,  66  N.  J.  Eq.  291,  56  Atl.  1039,  it  is  held  that 
a  society  "to  collect  and  preserve  historical  and  current  accounts  of 
events,  persons,  and  inventions,  scientific  investigations,  and  photo- 
graphs, drawings,  models,  and  specimens,  and  all  other  materials  of 
a  similar  character  connected  with  the  interests  of  Vineland,"  does 
not  possess  an  educational  character. 

so  Inhabitants  of  Essex  v.  Brooks,  164  Mass.  79,  41  N.  E.  119; 
Estate  of  Lenox,  9  N.  Y.  Supp.  895;  Estate  of  Higgin,  55  Misc.  Rep. 
175,  106  N.  Y.  Supp.  465.  But  see  Estate  of  Francis,  121  App.  Div. 
129,  105  N.  Y.  Supp.  643,  affirmed,  189  N.  Y.  554,  82  N.  E.  1126. 

«i  Estate  of  Arnot,  71  Misc.  Rep.  390,  130  N.  Y.  Supp.  197. 

82  Estate  of  Mergentime,  129  App.  Div.  367,  113  N.  Y.  Supp.  948, 
affirmed,  195  N.  Y.  572,  88  N.  E.  1125.  But  see  Estate  of  Vanderbilt, 
2  Con.  319,  10  N.  Y.  Supp.  239;  Estate  of  Wolfe,  15  N.  Y.  Supp.  539. 


200  INHERITANCE  TAXATION. 

Christian  Association,88  and  the  Women's  Temper- 
ance Union,34  have  been  regarded  as  educational  in- 
stitutions entitled  to  exemption. 

§  149.  Religious  Institutions.— Churches  and  reli- 
gious societies  or  corporations  are,  like  other  charities, 
subject  to  the  inheritance  tax,36  except  when,  as  is 
now  generally  the  case,  they  are  expressly  exempt 
by  the  statute.36  Where  the  exemption  exists,  it  can 
be  asserted  in  favor  of  gifts  in  trust  to  the  use  of 
religious  institutions,  as  well  as  in  behalf  of  absolute 
gifts.87  It  has  been  decided  that  a  corporation  organ- 

33  Estate  of  Moses,  138  App.  Div.  525,  123  N.  Y.  Supp.  443. 

84  Estate  of  Field,  71  Misc.  Rep.  396,  130  N.  Y.  Supp.  195. 

as  Estate  of  Kavanagh,  6  N.  Y.  Supp.  669;  Barringer  v.  Cowan, 
55  N.  C.  436.  In  Catlin  v.  Trustees  of  Trinity  College,  113  N.  Y. 
133,  3  L.  E.  A.  206,  20  N.  E.  864,  it  was  decided  that  legacies  to 
religious  colleges  and  societies,  not  exempted  from  taxation  by  char- 
ter or  special  laws,  were  liable  to  the  collateral  inheritance  tax 
under  the  law  of  1887,  subjecting  to  its  provisions  all  property  which 
shall  pass  by  will  to  any  "body  politic  or  corporate  ....  other  than 
....  the  societies,  corporations  and  institutions  now  exempted  by 
law  from  taxation." 

so  Carter  v.  Whitcomb,  74  N.  H.  482,  17  L.  B.  A.,  N.  S.,  733,  69 
Atl.  779,  holding  that  a  statute  exempting  religious  societies  from  the 
operation  of  the  succession  tax  is  not  repealed  by  its  re-enactment 
with  a  proviso  that  such  societies  shall  be  so  exempt  only  when  they 
are  bound  to  devote  the  property  received  solely  to  such  uses  that 
the  property  would,  by  law,  be  exempt  from  taxation. 

In  Estate  of  Wolfe,  2  Con.  600,  15  N.  Y.  Supp.  539,  it  was  held 
that  Grace  Church  was  not  exempt. 

In  Sherrill  v.  Christ  Church,  121  N.  Y.  701,  25  N.  E.  50,  it  was 
held  that  a  legacy  to  a  certain  church  corporation  "toward  the  build- 
ing of  a  new  church  or  the  renovation  of  the  present  one"  was  sub- 
ject to  the  collateral  inheritance  tax  of  1885. 

In  First  TJniversalist  Society  v.  Bradford,  185  Mass.  310,  70  N.  E. 
204,  it  is  decided  that  the  rule  that  a  devise  or  bequest  to  a  religious 
society  is  not  subject  to  the  succession  tax  applies  to  a  devise  to  a 
religious  society  of  a  dwelling-house  for  a  parsonage,  which  would  be 
taxable  to  the  society  when  used  for  that  purpose. 

3T  Carter  v.  Eaton,  75  N.  H;  560,  78  Atl.  643;  Carter  v.  Story  (N. 
H.),  78  Atl.  1072.  In  these  cases  the  testamentary  gifts  to  churches 
were  in  trust,  the  income  to  be  used  for  church  purposes  only. 


EXEMPTION  OF  CHARITIES.  201 

ized  to  provide  churches  and  clergymen  for  seamen 
in  the  city  of  New  York  is  a  religious  corporation, 
so  that  a  bequest  to  it  is  exempt  from  the  transfer  tax, 
although  its  charter  enables  it  to  keep  a  seamen's 
boarding-house.38  It  has  also  been  decided  that  a  gift 
to  a  local  branch  of  the  Salvation  Army,  for  the  pur- 
pose of  erecting  a  hall  for  the  branch  in  the  state  and 
caring  for  sick  and  disabled  members,  is  exempt.39 
The  New  York  Yearly  Meeting  of  Friends  comes 
within  the  exemption  of  the  New  Jersey  statute  in 
favor  of  Bible  or  tract  societies,  religious  organiza- 
tions, boards  of  the  church  or  organizations  thereof, 
"not  confined  in  their  operations  and  benefactions  to 
local  or  state  purposes."40 

In  New  Hampshire  societies  and  organizations  con- 
nected with  a  church,  whose  purposes  are  religious, 
educational,  and  philanthropic,  such  as  the  Young 
Women's  Christian  Association,  the  Women's  Auxili- 
ary to  the  Young  Men's  Christian  Association,  a  home 
for  aged  women,  the  Women's  Relief  Corps  of  the 
Grand  Army  of  the  Republic,  are  charitable  organiza- 
tions within  the  meaning  of  a  statute  exempting  such 
organizations  from  the  succession  tax.41  It  has  also 
been  held  in  New  Hampshire  that  a  bequest  of  income 
to  a  corporation  chartered  to  promote  missions,  edu- 
cate young  men  for  the  ministry,  and  further  other 
religious  charities  is  not  subject  to  the  inheritance 
tax.42 

But  in  New  York  it  has  been  held  that  missionary 
societies  and  Young  Men's  Christian  Associations  are 
not  "religious  corporations"  within  the  meaning  of 

s»  Estate  of  Prall,  78  App.  Div.  301,  79  N.  Y.  Supp.  97L 
»»  Estate  of  Crawford,  148  Iowa,  60,  126  N.  W.  774. 

40  State  v.  New  York  Yearly  Meeting  of  Friends,  81   N.  J.   Eq. 
620,  48  Atl.  227. 

41  Carter  v.  Whitcomb,  74  N.  H.  482,  17  L.  B.  A.  733,  69  AtL  779. 
4»  Carter  v.  Story  (N.  H.),  78  Atl.  1072. 


202  INHERITANCE  TAXATION. 

the  exemptions  provided  in  the  transfer  tax  law.48 
However,  the  view  has  been  taken  by  the  supreme 
court  of  New  York  that  the  Young  Men's  Christian 
Association  and  the  Young  Women's  Christian  Asso- 
ciation fall  within  the  term  " educational"  as  used 
in  the  exemption  provision  of  the  statute.44 

A  bequest  to*  a  named  bishop,  "or  to  his  living  suc- 
cessor, to  be  used  in  his  African  mission  work,"  is, 
in  the  event  of  the  bishop's  death,  a  gift  to  "his  living 
successor"  personally, -not  to  a  corporation  sole  in  its 
ecclesiastical  and  official  capacity,  and  is  exempt  by 
the  provision  of  the  New  York  statute  of  1892  which 
excepts  from  the  transfer  tax  "any  property  hereto- 
fore or  hereafter  devised  or  bequeathed  to  any  person 
who  is  a  bishop,  or  to  any  religious  corporation." 
And  the  fact  that  the  "living  successor"  is  a  resident 
of  New  Jersey,  and  consequently  not  a  domestic  bishop, 
does  not  alter  the  rule.48  The  purpose  of  this  exemp- 
tion appears  to  be  to  except  from  the  transfer  tax 
property  given  to  religious  corporations,  whether 
held  in  the  name  of  the  corporation  itself,  or,  as  is  the 
custom  in  some  denominations,  in  the  name  of  one  of 
the  heads  of  the  church.  The  statute  uses  only  the 
word  "bishop,"  but  it  seems  to  cover  a  gift  to  "an 
archbishop  or  the  cardinal  archbishop,  in  his  official 

«  Estate  of  Watson,  171  N.  Y.  256,  63  N.  E.  1109;  In  re  Board  of 
Home  Missions,  58  Hun,  116,  11  N.  Y.  Supp.  311;  Estate  of  Fay,  47 
Misc.  Hep.  532,  76  N.  Y.  Supp.  62;  Estate  of  White,  118  App.  Div. 
869,  103  N.  Y.  Supp.  688.  Said  Justice  Werner,  in  the  Watson  case 
above,  "it  is  apparent  that  the  legislature,  in  speaking  of  religious 
corporations,  has  never  intended  to  include  within  that  term  any 
of  the  numerous  benevolent,  charitable,  philanthropic  and  missionary 
organizations  created  either  under  special  laws  or  under  the  general 
statutes  repealed  by  the  membership  corporations  law." 

In  Estate  of  McCormick,  71  Misc.  Rep.  95,  127  N.  Y.  Supp.  493, 
the  American  Baptist  Publication  Society  is  held  not  exempt  from 
the  transfer  tax  law. 

<*  Estate  of  Moses,  138  App.  Div.  525,  123  N.  Y.  Supp.  443. 

«  Estate  of  Palmer,  33  App.  Div.  307,  53  N.  Y.  Supp.  847,  affirmed, 
158  N.  Y.  669,  52  N.  E.  1125. 


EXEMPTION  OP  CHARITIES.  203 

capacity,  as  they  are  all  unquestionably  bishops,  as 
well  as  the  religious  and  temporal  heads  of  their 
church. ' '  ** 

§  150.  Institutions  for  Support  of  the  Aged  or 
Indigent. — Taking  the  view  that  an  exemption  in 
favor  of  charitable  institutions  should  be  construed 
liberally  to  promote  its  benevolent  purpose,  and  that 
an  institution,  in  order  to  be  charitable  within  the 
meaning  of  the  exemption,  need  not  devote  itself  ex- 
clusively to  such  work,  the  Iowa  court  has  concluded 
that  a  testamentary  gift  of  the  use  and  profits  of  real 
estate  in  perpetuity  to  the  dependent  poor  of  a  county, 
and  constituting  the  board  of  supervisors  of  the  county 
trustees  to  carry  the  gift  into  effect,  is  a  gift  to  a 
"charitable  institution"  and  as  such  exempt  from  the 
inheritance  tax.  The  county,  being  thus  charged  with 
the  duty  of  relieving  and  supporting  the  poor,  is  to 
that  extent  a  charitable  organization,  and  a  gift  made 
specifically  in  aid  of  this  feature  of  its  work  is  to  all 
reasonable  intents  and  purposes  a  gift  to  or  for  a 
charitable  institution.47 

A  home  for  aged  women,  although  its  beneficiaries 
are  required  to  pay  a  sum  for  admission  and  turn  over 
to  it  the  property  they  possess,  is  a  charitable  organi- 
zation within  the  meaning  of  the  New  Hampshire  stat- 
ute exempting  such  organizations  from  the  succes- 
sion tax.  And  a  home  for  aged  men  has  been  held 
oxempt  from  the  New  York  collateral  inheritance  tax, 
as  a  charitable  institution  or  almshouse,  notwith- 
standing applicants  are  required  to  pay  a  fee  and  turn 
over  their  property  to  the  home.48 

«•  Estate  of  Kelly,  29  Misc.  Rep.  169,  60  N.  Y.  Supp.  1005. 

47  Estate  of  Spangler,  148  Iowa,  333,  127  N.  W.  625. 

«  Carter  v.  Whitcomb,  74  N.  H.  482,  17  L.  B.  A.,  N.  S.,  733,  89 
Atl.  779;  Estate  of  Vassar,  127  N.  Y.  1,  27  N.  E.  394.  But  compare 
Estate  of  Keech,  57  Hun,  588,  11  N.  Y.  Supp.  265. 


204  „  INHERITANCE  TAXATION. 

Where  a  testator  gave  his  residuary  estate  to  trus- 
tees "for  the  purpose  of  founding,  erecting  and  main- 
taining" a  "home  for  the  aged,"  the  residuary  estate 
to  remain  in  the  hands  of  the  trustees  until  the  ter- 
mination of  two  lives  in  being,  the  estate,  although 
actually  within  the  hands  of  the  trustees  thereof,  may 
properly  be  considered  as  in  the  possession  of  a  cor- 
poration or  association  already  formed  under  the  will, 
or  as  in  the  control  of  the  supreme  court,  for  the 
purpose  of  carrying  out  the  charitable  scheme  of  the 
testator,  and  therefore  is,  under  the  provisions  of  the 
New  York  tax  law  of  1896  in  force  at  the  time  of 
his  death,  read  in  connection  with  the  provisions  of 
chapter  701  of  the  Laws  of  1893,  exempt  from  the  trans- 
fer tax,  as  the  "property  of  an  association  organized 
exclusively  for  ....  charitable  ....  and  ....  benev- 
olent purposes."  The  amendment  of  1900,  making 
the  general  exemptions  provided  for  in  section  4  in- 
applicable to  taxable  transfers,  has  no  application.*9 

Corporations  organized  for  the  purpose  of  support- 
ing and  educating  indigent  persons,  so  that  their 
property  is  not  subject  to  taxation,  have,  in  a  number 
of  cases,  been  regarded  as  exempt  from  the  operation 
of  the  New  York  inheritance  tax  statute.80  An  asso- 
ciation which  dispenses  benefits  to  the  poor  without 
charge,  and  maintains  a  place  where  money  is  dis- 
bursed to  the  needy,  but  has  no  house  where  they  are 
lodged,  is  not  subject  to  a  legacy  tax.  It  is  an  alms- 
house — a  pure  charity.51  An  institution  for  the  blind, 
free  to  patients,  is  an  almshouse,  and  bequests  to  it 
are  not  subject  to  the  legacy  tax.52  But  it  has  been 

49  Estate  of  Grares,  171  N.  Y.  40,  63  N.  E.  787. 

so  Church  Charity  Foundation,  6  Dem.  Sur.  (N.  Y.)  154;  Estate  of 
Hunter,  11  N.  Y.  St.  Eep.  704;  Estate  of  Herr,  55  Hun,  167,  7  N. 
Y.  Supp.  852;  Estate  of  Neale,  57  Hun,  591,  10  N.  Y.  Supp.  713. 

si  Estate  of  Lenox,  9  N.  Y.  Supp.  895. 

•2  Estate  of  Underbill,  2  Con.  262,  20  N.  Y.  Supp.  134. 


EXEMPTION  OP  CHARITIES.  205 

thought  that  a  home  for  aged  women  is  not  an  alms- 
house  and  exempt  from  the  legacy  tax,  if  it  charges 
board  for  the  persons  admitted  to  it.  "I  have  re- 
peatedly held,"  said  Justice  Ranson,  "that  where  in- 
mates of  such  institutions  are  required  to  pay  for  any 
of  the  benefits  received,  the  institution  is  not  an  alms- 
house,  not  being  appropriated  wholly  for  the  poor,  and 
is  therefore  subject  to  the  tax. ' ' 53  The  same  justice  has 
decided  that  an  institution  which  maintains  a  home 
and  provides  meals  and  lodgings  free,  but  which 
charges  for  maintaining  a  day  nursery,  is  not  a  pure 
charity  and  not  exempt  as  an  almshouse  from  the 
legacy  tax.64 

A  legacy  to  the  New  England  Trust  Company  of 
Boston,  "the  interest  of  which  they  will  pay  to  needy 
aged  men  and  women  who  had  been  in  better  circum- 
stances in  early  life  but  had  become  in  want  when  in 
old  age,"  is  not  to  or  for  a  charitable  institution  within 
the  meaning  of  the  Massachusetts  collateral  inherit- 
ance tax  law  of  1891." 

§  151.  Hospitals  and  Infirmaries. — An  institution 
incorporated  for  no  private  gain,  but  for  the  care  and 
medical  treatment  of  the  sick  without  profit  to  the 
founders,  and  for  that  purpose  made  the  holder  or 
manager  of  a  donated  trust  fund,  is  a  charitable  corpo- 
ration in  the  legal  sense  of  that  term.88  And  the  fact 
that  such  patients  as  are  able  to  pay  are  required 

63  Estate  of  Lenox,  9  N.  Y.  Supp.  895. 

«*  Estate  of  Vanderbilt,  2  Con.  319,  10  N.  Y.  Supp.  239. 

SB  Hooper  v.  Shaw,  176  Mass.  190,  57  N.  E.  361. 

6«  Hearnes  v.  Waterbury  Hospital,  66  Conn.  98,  31  L.  R.  A.  224, 
33  Atl.  595;  McDonald  v.  Massachusetts  General  Hospital,  120  Mass. 
432,  21  Am.  Rep.  529;  Downes  v.  Harper  Hospital,  101  Mich.  555,  45 
Am.  St.  Rep.  427,  25  L.  R.  A.  602,  60  N.  W.  42;  Pepke  v.  Grace  Hos- 
pital, 130  Mich.  493,  90  N.  W.  278;  Murtaugh  v.  St.  Louis,  44  Mo. 
479.  These  decisions  do  not  discuss  the  question  of  inheritance  tax- 
ation, but  the  liability  of  a  hospital  for  the  negligence  of  its  agents. 


206  INHERITANCE  TAXATION. 

to  do  so  has  been  thought  not  to  deprive  the  institution 
of  its  character  as  a  charity,  if  the  income  from  such 
source  is  not  a  matter  of  private  gain  but  is  used  in 
defraying  the  expenses  of  the  hospital  and  is  itself 
thereby  stamped  with  the  impress  of  charity.87 

Therefore,  it  would  not  be  unreasonable  to  hold  that 
when  a  hospital  is  conducted  along  lines  of  benevo- 
lence, not  for  purposes  of  profit  or  financial  gain, 
bequests  to  it  should  be  exempt  from  the  inheritance 
tax,  if  the  statute  exempts  from  its  operation  chari- 
table and  benevolent  institutions.  In  New  York  hos- 
pitals have  enjoyed  exemption  when  the  statute  ex- 
empts their  property  from  taxation,  and  the  inherit- 
ance tax  law  excepts  from  its  operation  "the  societies, 
corporations  and  institutions  now  exempted  by  law 
from  taxation. ' ' " 

The  New  York  statute  now  exempts  testamentary 
gifts  to  hospital  or  infirmary  corporations  which  pos- 
sess no  element  of  private  or  corporate  gain  and  are 
conducted  exclusively  for  the  purpose  avowed.  Under 
this  statute  a  bequest  to  the  Craig  Colony  of  Epileptics 
has  been  held  exempt,  notwithstanding  the  patients 
work  on  the  premises  to  grow  food  or  make  products 
to  be  sold  by  the  state  to  obtain  necessities  to  support 
the  colony.5' 

67  Jensen  v.  Maine  Eye  &  Ear  Infirmary,  107  Me.  408,  78  Atl.  898; 
Downes  v.  Harper  Hospital,  101  Mich.  555,  45  Am.  St.  Eep.  427,  25 
L.  B.  A.  602,  60  N.  W.  42;  Gable  r.  Sisters  of  St.  Francis,  227  Pa. 
254,  136  Am.  St.  Eep.  879,  75  Atl.  1087;  Powers  v.  Massachusetts 
Homeopathic  Hospital,  109  Fed.  294,  47  C.  C.  A.  122,  65  L.  E.  A.  372. 
But  see  University  of  Louisville  Y.  Hammock,  127  Ky.  564,  128  Am. 
St.  Eep.  355,  14  L.  B.  A.,  N.  S.,  784,  106  S.  W.  219.  In  these  deci- 
sions the  liability  of  hospitals  for  the  negligence  of  its  agents  is 
involved,  not  the  liability  to  inheritance  taxation. 

»8  Will  of  Vassar,  127  N.  Y.  1,  27  N.  E,  394;  Estate  of  Kimberly, 
27  App.  Div.  470,  50  N.  Y.  Supp.  586;  Estate  of  Higgins,  55  Misc. 
Eep.  175,  106  N.  Y.  Supp.  465;  Estate  of  Vanderbilt,  2  Con.  319,  10 
N.  Y.  Supp.  239. 

5»  Estate  of  Moore,  66  Misc.  Eep.  116,  122  N.  Y.  Supp.  828,  affirmed, 
143  App.  Div.  910,  128  N.  Y.  Supp.  1135. 


EXEMPTION  OF  CHARITIES.  207 

A  bequest  to  a  home  for  consumptives,  the  inmates 
of  which  are  supported  by  charity,  has  been  held  not 
liable  to  the  New  York  legacy  tax.80  And  a  bequest 
to  a  hospital  for  the  care  and  treatment  of  the  indigent 
sick  and  disabled  is  exempt  as  a  gift  to  an  almshouse.81 

§  152.  Cemetery  Association. — A  bequest  to  a  ceme- 
tery corporation  of  another  state,  the  interest  to  be 
used  for  the  purpose  of  keeping  the  testator's  "lot  in 
good  condition  forever,"  has  recently  been  held  sub- 
ject to  the  New  York  transfer  tax.82  This  holding 

•o  Will  of  Herr,  57  Hun,  591,  10  N.  Y.  Supp.  680. 

«i  Estate  of  Curtiss,  1  Con.  471,  7  N.  Y.  Supp.  207. 

•2  Estate  of  Fay,  62  Misc.  Eep.  154,  116  N.  Y.  Supp.  423.  Said  the 
court  in  this  case:  "In  Matter  of  Vinot's  Estate,  7  N.  Y.  Supp.  517, 
Surrogate  Ransom  held  that  a  bequest  of  one  thousand  dollars  to  an 
association,  the  income  of  which  was  to  be  applied  to  the  care  and 
preservation  of  the  burial  plot  of  a  decedent,  was  not  taxable.  Ag 
this  decision  has  not  been  overruled  by  a  higher  court,  it  might  be 
considered  as  a  controlling  authority  in  this  case.  In  view,  how- 
ever, of  the  language  of  the  court  of  appeals  in  the  Gould  case,  156 
N.  Y.  423,  51  N.  E.  287,  and  of  the  appellate  division  in  the  McAvoy 
case,  112  App.  Div.  377,  98  N.  Y.  Supp.  437,  it  would  appear  that 
the  decision  in  the  Matter  of  Vinot  would  scarcely  meet  with  the 
approval  of  the  appellate  courts  at  the  present  time.  In  the  Gould 
case  it  was  held  that  the  property  was  taxable,  although  bequeathed 
for  the  purpose  of  satisfying  a  contractual  obligation  existing  at  the 
time  of  decedent's  death;  and  in  the  McAvoy  case  it  was  held  that 
the  bequest  was  taxable,  although  the  beneficiary  received  it  in  pay- 
ment of  services  to  be  rendered  hereafter.  While  it  has  been  held 
that  a  sum  spent  by  an  executor  in  the  erection  of  a  monument  to 
decedent  is  exempt  (Matter  of  Edgerton's  Estate,  35  App.  Div.  125, 
54  N.  Y.  Supp.  700),  and  that  a  reasonable  sum  spent  in  the  purchase 
of  a  burial  plot  for  decedent  may  be  regarded  as  a  part  of  the  funeral 
expenses  and  therefore  a  proper  deduction  (Matter  of  Liss'  Estate,  39 
Misc.  Rep.  123,  78  N.  Y.  Supp.  969),  there  is  a  manifest  distinction 
between  such  expenditures  made  by  an  executor  in  nis  discretion  and 
a  bequest  made  by  decedent  in  his  last  will  to  a  certain  beneficiary 
and  for  a  certain  specific  purpose.  In  the  latter  case  the  property 
passes  to  the  beneficiary,  by  virtue  of  the  provisions  in  decedent's 
will,  and  as  the  statute  provides  that  all  property  passing  by  will 
(if  not  going  to  parties  specifically  mentioned  as  being  exempt)  is 
taxable,  the  bequest  to  the  Mt.  Auburn  Cemetery  Association  would 
seem  to  be  taxable." 


208  INHERITANCE  TAXATION. 

seems  to  be  in  conflict  with  a  prior  decision  in  the  same 
state.68 

§  153.  Masses  for  Repose  of  Souls. — It  has  once 
been  affirmed  in  New  York  that  a  bequest  to  the  Roman 
Catholic  church  for  masses  to  be  read  for  the  repose 
of  the  soul  of  the  testatrix  is  exempt  from  the  trans- 
fer tax.64  But  on  another  occasion  it  was  decided 
that  a  bequest  to  executors  in  trust  to  expend  for 
masses  for  the  repose  of  the  soul  of  the  testatrix  and 
her  husband  was  subject  to  the  tax  imposed  by  the 
collateral  inheritance  act.65  On  a  subsequent  occa- 
sion it  was  held  that  a  direction  to  executors  to  ex- 
pend, in  their  discretion,  a  certain  sum  for  masses  for 
the  repose  of  the  soul  of  the  testatrix  was  a  gift  to  the 
executors  for  a  religious  use  upon  a  valid  and  effectual 
trust,  and  that  the  transfer  should  be  taxed  at  the  rate 
of  five  per  cent.66  A  mass  is  not  necessarily  a  part  of 
the  funeral  service,  and  hence  a  bequest  to  a  priest  to 
say  masses  is  not  exempt  from  the  transfer  tax  as  a 
funeral  expense.67 

Bequests  for  masses  have  been  pronounced  for  chari- 
table purposes  in  California,  and  therefore  held  ex- 
empt from  the  inheritance  tax.67' 

§  154.  Societies  for  Prevention  of  Cruelty.— Be- 
quests for  the  benefit  of  a  society  for  the  prevention 
of  cruelty  to  animals  are  for  a  public  charity.68  An  in- 

•»  Estate  of  Vinot,  7  N.  Y.  Supp.  517.  For  Pennsylvania  decisions 
on  this  question,  see  Hurst  v.  Cookman,  1  Lane.  Law  Eev.  60;  Estate 
of  Walters,  1  Pa.  Co.  Ct.  Rep.  447;  Estate  of  Long,  22  Pa.  Super.  Ct. 
370. 

e*  Estate  of  Didion,  54  Misc.  Rep.  201,  105  N.  Y.  Supp.  924. 

e»  Estate  of  Black,  1  Con.  477,  5  N.  Y.  Supp.  452. 

««  Estate  of  Eppig,  63  Misc.  Rep.  613,  118  N.  Y.  Supp.  683. 

OT  Estate  of  McAvoy,  112  App.  Div.  377,  98  N.  Y.  Supp.  437. 

«7»  Estate  of  Herzo,  2  Cof.  Pro.  Dec.  165. 

«s  Minns  v.  Billings,  183  Mass.  126,  97  Am.  St.  Rep.  420,  5  L.  B. 
A.,  N.  S.,  686,  66  N.  E,  593. 


EXEMPTION  OF  CHARITIES.  209 

stitution  whose  purpose  is  so  laudable  and  humane, 
and  therefore  so  worthy  of  encouragement,  is  quite  as 
much  entitled  to  exemption  from  the  inheritance  tax 
as  many  other  charities  that  enjoy  such  exemption. 
But  in  New  York,  though  the  decision  was  rendered 
nearly  a  quarter  of  a  century  ago,  it  was  decided  that 
a  bequest  to  a  society  for  the  prevention  of  cruelty 
to  animals  was  subject  to  the  legacy  tax.69  And  re- 
cently it  has  been  held  in  that  state  that  a  testamen- 
tary gift  to  a  society  for  the  prevention  of  cruelty  to 
children  is  not  exempt  from  the  transfer  tax.70 

«»  Estate  of  Keith,  1  Con.  370,  5  N.  Y.  Supp.  201. 
TO  Estate  of  Moses,  138  App.  Div.  525,  123  N.  Y.  Supp.  443. 
14 


210  INHERITANCE  TAXATION. 


CHAPTER  X. 
CIRCUMSTANCES  AFFECTING  LIABILITY  FOR  TAX. 

§  158.  Compromise  of  Will  Contest  or  Litigation — Pennsylvania  De- 
cisions. 

§   159.  Compromise  of  Will  Contest — Illinois  Decisions. 

§  160.  Compromise  of  Will  Contest — New  York  Decisions. 

§  161.  Compromise  of  Will  Contest — Iowa  Decisions. 

§  162.  Compromise  of  Will  Contest — Massachusetts  Decisions. 

§  163.  Compromise  of  Will  Contest — Other  Decisions. 

§  164.  Eenunciation  or  Waiver  of  Legacy. 

§  165.  Compensation  to  Executor  or  Trustee. 

§  158.  Compromise  of  Will  Contest  or  Litigation — 
Pennsylvania  Decisions. — A  compromise  of  litigation 
or  of  a  will  contest  cannot  be  resorted  to  as  a  mere 
device  for  evading  the  payment  of  an  inheritance  tax; 
for  courts  look  beyond  the  form  of  any  arrangement, 
whereby  the  commonwealth  is  deprived  of  a  tax,  to  its 
substance  to  ascertain  its  real  purpose.  Hence  an 
agreement  to  set  aside  a  will  and  to  make  distribution 
in  accordance  with  its  provisions  or  otherwise  will 
not  relieve  legacies  otherwise  taxable  from  the  burden 
which  the  law  imposes  upon  them.  But  the  view  pre- 
vails in  Pennsylvania  that  money  paid  in  good  faith 
in  compromise  of  threatened  litigation  or  of  a  will 
contest  is  not  subject  to  the  legacy  tax.1 

It  has  been  decided  in  that  state  that  the  collateral 
inheritance  tax  is  not  payable  on  the  money  which 
legatees,  who  are  collaterals,  authorized  the  executor 

i  Estate  of  Hawley,  214  Pa.  525,  6  Ann.  Cas.  572,  63  Atl.  1021.  In 
Appeal  of  Commonwealth,  34  Pa.  204,  the  testator  devised  his  entire 
estate  to  his  executors  in  trust  for  legatees  and  devisees;  the  widow 
declined  to  take  her  legacy,  but  afterward,  by  an  arrangement  with 
the  executors  approved  by  the  court,  accepted  a  sum  less  than  her 
share  of  the  estate  and  relinquished  her  claim  to  the  residue.  It  was 
held  that  she  took  this  sum  under  her  paramount  title  as  a  widow, 
not  out  of  the  fund  bequeathed  in  trust,  and  therefore  that  it  was 
not  subject  to  the  collateral  inheritance  tax. 


CIRCUMSTANCES   AFFECTING  LIABILITY   FOR   TAX.  211 

to  pay  to  a  disinherited  son  of  the  decedent,  in  pursu- 
ance of  a  compromise  by  which  the  son's  caveat  was 
withdrawn  and  the  will  admitted  to  probate ; 2  and 
that  such  tax  cannot  be  imposed  upon  money  paid  to 
extinguish  the  title  of  persons  who  claim  adversely 
to  the  decedent,  or  upon  property  surrendered  by  way 
of  compromise  to  persons  who  so  claim.8  The  theory 
of  the  first  of  these  decisions  appears  to  be  that  the 
portion  of  the  estate  that  passed  to  the  son  was  never 
accepted  by  the  legatees,  and  that  a  bequest  is  not 
effectual  without  acceptance.  In  the  second  decision 
the  court  declared  that  "no  liberality  of  construction 
can  extend  the  language  of  the  statute  so  as  to  make 
it  include  either  moneys  paid  to  extinguish  the  title 
of  persons  claiming  adversely  to  the  decedent,  whose 
estate  is  liable  to  taxation,  or  property  surrendered 
by  way  of  compromise  to  persons  so  claiming,  and 
thus  never  forming  part  of  decedent's  estate  at  all." 

§  159.  Compromise  of  Will  Contest — Illinois  De- 
cisions.— The  Illinois  court  has  declined  to  assent  to  the 

2  Estate  of  Pepper,  159  Pa.  508,  28  Atl.  253.  In  this  case  the  will 
gave  the  estate  to  collateral  kindred  and  strangers,  and  to  avoid  a 
contest  they  yielded  a  portion  of  the  estate  to  a  son.  The  issue  was 
whether  this  portion  was  subject  to  a  tax.  In  deciding  in  the  neg- 
ative, the  court  said:  "We  have  reached  the  conclusion  that  under  the 
most  favorable  construction  of  the  act,  so  far  as  respects  the  conten- 
tion on  behalf  of  the  commonwealth,  they  are  not  so  liable,  and  for  the 
reason  that  the  amount  paid  caveator  was  never  received  by  them 
as  legatees,  and  under  the  act  it  is  only  so  much  of  the  estate  which 
actually  passes  to  them  by  virtue  of  the  will  that  is  liable  to  the  tax. 
It  will  readily  be  seen,  if  the  contest  instituted  by  the  caveator  had 
been  successful,  he  would  be  entitled  under  the  intestate  law  to  the 
entire  estate,  and  freed  from  the  tax;  but,  instead  of  further  liti- 
gation, he  accepted  a  portion  of  the  estate,  relinquished  his  claim  to 
the  balance,  and  thus,  of  course,  reduced  the  amount  passing  to  the 
legatees,  and,  in  fact,  to  the  extent  of  the  amount  he  received,  the 
will  is  a  nullity,  so  that  all  the  legatees  take  is  the  amount  of  their 
bequests  after  deducting  the  sum  paid  the  caveator  and  this  they 
concede  is  subject  to  the  tax." 

«  Estate  of  Kerr,  159  Pa.  512,  28  Atl.  354. 


212  INHERITANCE  TAXATION. 

reasoning  and  conclusion  of  these  two  Pennsylvania 
cases,  and  has  held  that  a  sum  paid  by  executors,  by 
virtue  of  an  agreement  among  the  residuary  legatees, 
to  an  heir  in  consideration  of  his  promise  not  to  con- 
test the  will,  is  no  part  of  the  expenses  of  administra- 
tion to  be  deducted  from  the  estate  in  ascertaining 
its  value  for  purposes  of  the  inheritance  tax.  To 
adopt  the  language  of  the  court:  "No  changes  of  title, 
transfers,  or  agreements  of  those  who  succeed  to  the 
estate,  among  themselves  or  with  strangers,  can  affect 
the  tax.  All  questions  concerning  it  must  be  deter- 
mined as  of  the  date  of  decedent's  death The 

statute  requires  all  the  property  of  the  estate  to  be 
appraised  at  its  fair  market  value.  The  value  of  the 
estate  which  passes  is  the  value  so  ascertained  less  the 
indebtedness  of  the  decedent  and  the  expenses  of  ad- 
ministration. Whatever  litigation  may  occur  between 
those  who  succeed  to  the  estate  as  to  their  respective 
rights,  or  between  different  claimants  of  interests, 
cannot  affect  such  value.  The  fair  market  value  so 
ascertained  is  the  basis  upon  which  the  amount  of  the 
tax  must  be  fixed.  Unjust  claims  may  be  made  against 
those  succeeding  to  the  estate,  and  they  may  be  put 
to  great  expense  in  defending  their  property,  but  the 
value  of  the  property  or  of  their  respective  interests 

in  the  property  is  not  thereby  affected It  is 

argued  that  the  heir  received  the  sum  paid  her  as  the 
value  of  her  interest  in  the  estate  by  virtue  of  the  fact 
that  she  was  heir,  and  that  it  therefore  passed  by  de- 
scent. In  fact,  however,  she  received  nothing  as  heir. 
She  received  nothing  from  the  estate.  No  beneficial 
interest  passed  to  her  under  any  statute.  The  money 
-was  paid  to  her  by  virtue  of  a  contract  with  the  heirs. 
The  decedent  died  testate.  His  will  disposed  of  all 
of  his  estate.  The  whole  of  the  residuary  estate 
vested,  at  the  instant  of  his  death,  in  the  residuary 
legatees.  The  inheritance  tax  was  then  due  and  pay- 


CIRCUMSTANCES   AFFECTING   LIABILITY   FOR   TAX.  213 

able.  The  beneficial  interest  in  the  property  then 
passed  to  the  legatees  and  their  succession  gave  rise 
to  the  tax.  Subsequent  events  did  not  affect  it."  4 

The  court  in  rendering  this  decision,  however,  ad- 
mits, as  it  had  previously  held,5  that  lawful  expenses 
incurred  by  executors  in  successfully  defending  a  will 
contest  were  properly  deducted,  and  then  proceeds  to 
state:  "It  is  argued  that  the  amount  paid  in  compro- 
mise of  the  threatened  litigation  diminished  the  value 
of  the  estate  as  much  as  if  it  had  been  paid  in  attor- 
neys' fees.  While  the  result  to  the  residuary  legatees 
may  have  been  the  same,  the  amount  of  the  beneficial 
interest  which  passed  to  them  under  the  will  was  not 
affected  by  the  fact  that  they  used  a  portion  of  the 
amount  which  did  so  pass  in  the  defense  against  or 
settlement  of  an  assault  upon  their  title.  Moneys 
lawfully  paid  by  the  executors  in  such  defense  stand 
on  a  different  footing,  because  the  beneficial  interest 
which  passes  under  a  will  is  only  what  remains  after 
the  payment  of  the  indebtedness  of  the  estate  and  ex- 
penses of  administration."8 

§  160.  Compromise  of  a  Will  Contest  or  Litigation 
— New  York  Decisions. — In  reaching  the  foregoing 
conclusion,  the  Illinois  court  relies  on  a  decision  of 
the  New  York  court  of  appeals  in  Estate  of  Cook.  In 
that  case  the  widow  and  adopted  daughter  of  the  tes- 
tator resisted  the  probate  of  his  will;  thereafter  it 
was  admitted  to  probate  under  an  agreement  whereby 
his  nephews  and  nieces,  as  residuary  legatees,  trans- 
ferred their  interests  in  the  estate  to  the  widow.  This 
arrangement  was  made  in  good  faith  for  no  other  pur- 
pose than  to  avoid  a  will  contest.  The  court  held  that 
the  residue  was  taxable  at  the  rate  of  five  per  cent 

«  Estate  of  Graves,  242  111.  212,  89  N.  E.  978. 

•  Connell  v.  Crosby,  210  111.  380,  71  N.  E.  350. 

•  Estate  of  Graves,  242  111.  212,  89  N.  E.  978.     See  sec.  322,  post. 


214  INHERITANCE  TAXATION. 

as  in  the  case  of  a  bequest  to  nephews  and  nieces, 
rather  than  at  the  rate  of  one  per  cent  as  in  the  case  of 
a  bequest  to  a  widow.  Said  the  court:  "The  com- 
promise did  not  change  the  will.  No  settlement  could 
change  a  word  that  the  testator  wrote.  The  will  stands 
as  it  was  written,  and  the  most  solemn  instrument, 
executed  by  all  parties  interested,  could  not  convert 
a  bequest  to  the  nephews  and  nieces  into  a  bequest 
to  the  widow.  As  we  said  in  another  case,  she  takes 
under  them  'by  contract,  not  under  the  will  or  from 
the  testator':  Greenwood  v.  Holbrook.1  A  succes- 
sion tax  is  measured  by  the  legal  relation  which  the 
legatee  bears  to  the  testator,  and  is  not  affected  by 
the  relation  which  an  assignee  of  the  legatee  bears 
to  him.  Here  the  legatees  took  the  residuum  under  the 
will.  They  succeeded  the  testator  in  the  ownership 
thereof,  and  their  succession  gives  rise  to  the  tax.  The 
widow  did  not  take  the  residue  from  the  testator, 
for  he  did  not  give  it  to  her.  She  took  as  assignee, 
not  as  legatee.  Unless  she  took  as  assignee,  she  did 
not  take  at  all.  The  legatees  assigned  to  her,  and  the 
rate  of  taxation  is  fixed  by  their  relation  to  the  testa- 
tor. As  she  did  not  take  through  the  will,  the  suc- 
cession tax  cannot  be  fixed  at  the  rate  of  one  per  cent, 
as  in  the  case  of  a  bequest  to  a  widow,  but  must  be 
fixed  at  the  rate  of  five  per  cent,  as  in  the  case  of  a 
bequest  to  nephews  and  nieces."8 

The  theory  of  the  New  York  decision,  as  interpreted 
by  the  Iowa  court,  is  that  the  estate  vested  at  the 
testator's  death,  and  that  since  the  legatees  did  not 
refuse  the  bequests,  but  transferred  them  to  the 
widow,  they  thereby  impliedly  accepted,  and  the 
widow  took,  the  residuary  estate  not  through  transfer 
by  the  will  but  through  transfer  by  assignment.9 

i  Greenwood  v.  Holbrook,  111  N.  Y.  465,  18  N.  E.  711. 
«  Estate  of  Cook,  187  N.  Y.  253,  79  N.  E.  991. 
•  EstaU  of  Wells,  142  Iowa,  255,  120  N.  W.  713. 


CIRCUMSTANCES   AFFECTING   LIABILITY   FOB   TAX.  215 

On  another  occasion  the  New  York  court  of  appeals 
decided  that  a  sum  expended  by  successful  contes- 
tants in  litigation  over  a  will  cannot  be  deducted  in 
valuing  the  estate  for  the  purpose  of  the  transfer  tax, 
although  the  court  charges  costs  and  allowances  in 
their  favor  upon  the  estate.  "We  think,"  said  Chief 
Justice  Andrews,  "the  surrogate  properly  disallowed 
this  item.  It  was  not  a  claim  existing  against  the 
decedent  or  his  property.  The  tax  imposed  by  the 
statute  is  upon  the  interests  transferred  by  will  or 
under  the  intestate  law  of  the  state.  The  devolution 
of  the  property  and  the  right  of  the  state  have  their 
origin  at  the  same  moment  of  time.  The  ascertain- 
ment of  the  value  of  the  taxable  interest  and  the 
fixing  of  the  tax  necessarily  takes  place  subsequent  to 
the  death.  But  the  guide  is  the  value  at  the  time  of 
the  death,  when  the  interests  were  acquired.  The  fact 
that  the  appellants  were  put  to  expense  in  asserting 
their  rights  and  were  embroiled  in  expensive  litiga- 
tion to  obtain  them  was  their  misfortune.  It  did  not 
diminish  the  value  of  the  interests  which  devolved 
upon  them  on  the  testator's  death.  It  was  a  loss, 
but  a  loss  to  their  general  estate.  It  did  not  prevent 
them  receiving  the  whole  interest  transmitted  to  them. 
The  fact  that  the  court  charged  certain  costs  and  al- 
lowances in  their  favor  upon  the  estate  did  not  change 
the  situation."10 

§  161.  Compromise  of  Will  Contest — Iowa  Deci- 
sions.— The  Iowa  court  reviews  the  foregoing  New 
York  and  Pennsylvania  cases,  without  pointing  out 
any  necessary  conflict  between  them,  and  decides  that 
where  a  testator  by  his  will  gave  a  legacy  to  the  sister 
of  his  deceased  wife  and  the  remainder  of  the  estate 
to  his  heirs,  but  an  earlier  will  gave  the  whole  estate 

10  Estate  of  Westburn,  152  N.  Y.  93,  46  N.  E.  315.  See  sec.  322, 
post. 


216  INHERITANCE  TAXATION. 

to  the  wife,  who  predeceased  him  leaving  as  her  heirs 
the  aforesaid  sister  and  two  children  of  another 
sister,  and  these  heirs  contested  the  last  will  but 
compromised  with  the  heirs  of  the  testator  under  an 
agreement  by  which  the  will  was  admitted  to  probate 
and  the  sister  was  to  receive  the  amount  given  her 
under  the  will  and  the  two  children  were  to  receive 
certain  other  amounts,  the  payment  thereof  to  be  in 
full  satisfaction  of  their  claims  against  the  estate — 
the  children  took  nothing  under  the  will,  nor  as  heirs 
or  creditors,  but  solely  by  virtue  of  the  settlement, 
and  hence  the  amounts  received  were  not  subject  to 
inheritance  taxation.11 

§  162.  Compromise  of  Will  Contest — Massachu- 
setts Decisions. — In  Massachusetts  it  recently  has  been 
decided  that  in  case  a  will  is  contested  and  the  benefi- 
ciaries thereunder  enter  into  a  compromise  with  the 
heirs  whereby  the  estate  is  distributed  in  a  manner 
differing  from  that  provided  in  the  will,  the  amount  of 
the  inheritance  tax  should  be  determined  in  accord- 
ance with  the  terms  of  the  will;  and  this  although  the 
compromise  has  been  effected  as  is  in  such  cases 
provided  by  statute,  and  has  been  confirmed  by  the 
probate  court  and  a  decree  entered  thereon.  For,  to 
use  the  language  of  Justice  Hammond,  "in  view  of 
the  nature  and  office  of  the  compromise  statute,  and 
of  the  language  of  the  tax  statute,  the  most  reason- 
able interpretation  of  the  phrase  'which  shall  by  will' 
in  the  tax  statute  is  that  it  describes  only  property 
that  passes  by  the  terms  of  the  will  as  written  and 
not  as  changed  by  any  agreement  for  compromise 
made  within  or  without  the  statute.  Any  other  inter- 
pretation would  make  the  amount  to  be  assessed 
hinge  on  the  manner  in  which  the  agreement  was  to 

11  Estate  of  Wells,  142  Iowa,  255,  120  N.  W.  713. 


CIRCUMSTANCES   AFFECTING   LIABILITY   FOB   TAX.  217 

be  carried  out."  The  court  cites  the  Illinois,  Iowa 
and  New  York  decisions  as  supporting  this  conclusion, 
and  declines  to  follow  the  Pennsylvania  decisions." 

§  163.  Compromise  of  Will  Contest— Other  Deci- 
sions.— In  Nebraska  it  is  affirmed  that  real  estate 
devised  by  will  passes  to  the  devisee  at  the  death  of 
the  testator,  and  its  status  under  the  law  taxing  in- 
heritances is  fixed  at  that  time,  so  that  an  agreement 
between  the  devisees  to  satisfy  a  claim  against  the 
estate  in  favor  of  one  of  them  by  a  conveyance  of  a 
portion  of  the  property  to  the  claimant  will  not  exempt 
it  from  the  inheritance  tax.13 

In  Tennessee,  where  the  testator  left  all  his  property 
to  his  widow,  collateral  heirs  contested  the  will,  and 
procured  it  to  be  set  aside,  but  the  case  was  reversed 
on  appeal  and  remanded,  and  the  widow  then  proposed 
to  deed  one-half  of  the  property  to  the  contestants 
if  they  would  withdraw  the  contest,  which  proposition 
was  accepted,  it  was  held  that  the  collateral  repre- 
sentatives did  not  derive  title  from  the  decedent,  but 
from  the  deeds  of  the  widow,  and  that  no  collateral 
inheritance  tax  was  due.1* 

In  Colorado,  where  the  sole  heir  of  the  testator 
contested  the  will  because  it  made  him  a  less  liberal 
allowance  than  the  statute,  and  the  executor  paid  him 
a  sum  in  addition  to  his  legacy  in  consideration  of  a 
withdrawal  of  the  contest,  it  was  decided  that  the  sum 
thus  paid  was  subject  to  the  tax.16 

Cases  somewhat  analogous  to  the  above  have  arisen 
when  taxes  under  United  States  internal  revenue  laws 
have  been  sought  to  be  imposed  on  money  received 

"  Baxter  v.  Stevens,  209  Mass.  459,  95  N.  E.  854.  But  see  the 
last  paragraph  of  the  next  section. 

"  Estate  of  Sanford  (Neb.),  133  N.  W.  870. 

i*  English  v.  Crenshaw,  120  Tenn.  531,  127  Am.  St.  Eep.  1025,  110 
8.  W.  210. 

i»  People  v.  Bice,  40  Colo.  508,  91  Pac.  33. 


218  INHERITANCE  TAXATION. 

as  the  result  of  a  compromise  in  a  will  contest,  and 
it  has  been  affirmed  that  money  thus  received  does  not 
fall  witljin  the  category  of  "legacies"  or  "distribu- 
tive shares"  subject  to  the  federal  internal  revenue 
tax.16  Where  an  instrument  offered  as  a  will  is  not 
admitted  to  probate,  but  contested  proceedings  there- 
for are  compromised  as  authorized  by  the  Massachu- 
setts statute,  and  the  estate  is  distributed  pursuant  to 
the  compromise  decree,  this  compromise  is  deemed  the 
will  under  which  the  property  passed  for  the  purposes 
of  the  federal  war  revenue  act  of  1898,  and  the  tax 
due  thereunder  is  determined  accordingly." 

§  164.  Renunciation  or  Waiver  of  Legacy. — Since  a 
legacy  does  not  become  effective  until  accepted,  there 
is  no  transfer  thereof  to  which  an  inheritance  tax 
will  attach  if  the  legatee  waives  or  renounces  the 
legacy,  but  the  succession  thereupon  becomes  taxable, 
if  at  all,  in  accordance  with  the  ultimate  devolu- 
tion of  the  property.  "If  no  transfer  is  effected  be- 
cause it  turns  out  that  there  is  no  property  to  trans- 
fer, no  tax  can  be  collected,  and,  if  the  legatee  renounce 
the  gift  and  refuse  to  receive  it,  no  tax  can  be  collected 
with  respect  to  him,  because  there  has  been  no  transfer 
to  him.  His  right  to  renounce  the  privilege  of  accept- 
ing the  donation  is  not  denied  or  forbidden  by  the 
statute,  and  such  right  is  recognized  by  the  authori- 
ties  On  his  effective  renunciation  the  title  to, 

or  ownership  of,  the  property  of  the  gift  remains 
in  the  estate  to  be  disposed  of  under  the  terms  of 
the  will  and  the  succession  is  taxable  in  accordance 

with  the  nature    of    the    ultimate    devolution 

Assuming  the  right  of  an  individual  to  reject  proffered 
bounty,  whether  tendered  by  deed  to  take  effect  at 
the  grantor's  death,  or  by  will,  I  can  see  no  good  rea- 

i«  Page  v.  Rives,  1  Hughes,  297,  Fed.  Cas.  No.  10,666. 
«  McCoj  v.  Gill,  156  Fed.  985. 


CIRCUMSTANCES   AFFECTING  LIABILITY   FOB   TAX.  219 

son  for  applying  the  provisions  of  the  tax  law  to  a 
mere  .abortive  attempt  at  a  transfer  as  well  as  to  the 
consummated  act."18 

In  a  recent  Iowa  case  it  is  affirmed  that  the  state 
cannot  collect  a  collateral  inheritance  tax  on  a  legacy 
which  has  been  waived  by  the  collateral  legatee.18 
This  decision  is  in  affirmance  of  an  earlier  case  hold- 
ing that  a  contract  between  the  beneficiaries  in  a  will, 
including  a  collateral  legatee,  whereby  the  provisions 
of  the  will  are  renounced  and  a  division  of  the  prop- 
erty provided  for,  is  valid,  notwithstanding  its  effect 
is  to  deprive  the  state  of  a  collateral  inheritance 
tax  otherwise  collectible  upon  the  legacy  to  the  col- 
lateral legatee.20 

§  165.  Compensation  to  Executor  or  Trustee. — The 
statutes  usually  provide  that  when  a  testator  makes 
a  bequest  or  devise  to  his  executors  or  trustees  in 
lieu  of  commissions  or  compensation,  the  excess  of  this 
gift  over  and  above  a  reasonable  compensation  for 
their  services  is  subject  to  the  inheritance  tax.20*  Ac- 
cordingly, where  a  testator  directs  that  his  executor 
and  trustee  be  paid  an  annual  sum,  together  with  the 
commissions  allowed  by  law,  so  long  as  he  should  act, 
in  full  compensation  for  his  services,  and  he  accepts 
the  annual  sum,  it  is  subject  to  the  transfer  tax.21 

"  Estate  of  Cook,  187  N.  Y.  253,  79  N.  E.  991;  Estate  of  Wolfe, 
89  App.  Div.  349,  85  N.  Y.  Supp.  949,  affirmed,  179  N.  Y.  599,  72  N. 
E.  1152. 

i»  Morrow  v.  Durant,  140  Iowa,  437,  17  Ann.  Cas.  850,  23  L.  E.  A., 
N.  S.,  474,  118  N.  W.  781. 

20  Estate  of  Stone,  132  Iowa,  136,  10  Ann.  Cas.  1033,  109  N. 
W.  455. 

20*  Estate  of  Gould,  19  App.  Div.  352,  46  N.  Y.  Supp.  506,  48  N. 
Y.  Supp.  872,  156  N.  Y.  423,  51  N.  E.  287;  Estate  of  Vanderbilt,  68 
App.  Div.  27,  74  N.*Y.  Supp.  450,  71  App.  Div.  611,  75  N.  Y.  Supp. 
969,  172  N.  Y.  69,  04  N.  E.  782. 

*i  Estate  of  Huber,  86  App.  Div.  458,  83  N.  Y.  Supp.  769. 


220  INHERITANCE  TAXATION. 

But  a  bequest  to  an  executor  of  a  stated  sum  "over 
and  above  his  legal  commissions  and  expenses,"  has 
been  held  to  be  not  within  the  statutory  provision  that 
when  a  bequest  is  made  in  lieu  of  commissions  the 
excess  thereof  above  reasonable  compensation  is  sub- 
ject to  the  inheritance  taxation.22  Neither  does  such 
provision  apply  where  the  testator  gives  legacies  to 
his  executors,  but  not  in  lieu  of  commissions,  and  di- 
rects that  no  compensation  shall  be  made  them  for 
their  services.28 

In  Maryland,  where  executors  were  appointed  under 
the  will  of  a  testator  who  died  March  27,  1845,  their 
commissions  were  held  subject  to  the  tax  imposed  by 
the  act  of  1844,  which  did  not  go  into  effect  until 
June  2,  1845.2* 

22  Matter  of  Underbill,  2  Con.  Sur.  262,  20  N.  T.  Supp.  134. 
2s  Estate  of  Vanderbilt,  68  App.  Div.  27,  74  N.  Y.  Supp.  450. 
2*  Williams  v.  Mosher,  6  Gill  (Md.),  454. 


SITUS  OF  PROPERTY — NONRESIDENCE  OP  PARTIES.          221 


CHAPTER  XL 
SITUS  OF  PROPERTY— NONRESIDENCE  OP  PARTIES. 

f  170.  In  General. 

§  171.  Real  Estate. 

§  172.  Personal  Property — Nonresidents. 

§  173.  Personal    Property   in   Foreign    States. 

§  174.  Marshaling  Assets — Massachusetts   Rule. 

5  175.  Marshaling  Assets — New  York  Rule. 

§  176.  Marshaling  Assets — New  Jersey  Rule. 

§  177.  Money  and  Deposits  in  Banks  or  Trust  Companies. 

§  178.  Debts  Due  Nonresident. 

§  179.  Notes,  Papers  and  Securities. 

§  180.  Notes  Secured  by  Mortgage  on  Real  Estate. 

§  181.  Corporate  Bonds. 

§  182.  Stock   in    Domestic    Corporations. 

§  183.  Stock  in  Corporation  Organized  in  Two  States. 

§  184.  Stock  in   Foreign   Corporations. 

§  170.  In  General. — In  the  administration  of  in- 
heritance tax  statutes  no  more  difficult  question  is 
likely  to  arise  than  the  determination  of  the  situs  of 
property.  Of  course  when  property  is  actually  located 
in  the  state  of  the  owner's  domicile  at  the  time  of  his 
death,  the  dominion  over  it,  the  transmission  of  it, 
and  hence  the  taxation  of  its  transfer,  are  governed 
exclusively  by  the  law  of  that  state;  but  when  the 
property  is  in  fact  located  in  one  state  and  the  owner 
dies  domiciled  in  another,  problems  are  presented  that 
do  not  lend  themselves  to  easy  solution.  The  tend- 
ency in  many  states  has  been  to  tax  all  personal  prop- 
erty within  its  territorial  boundaries,  notwithstanding 
it  may  be  owned  by  nonresidents;  and  also  to  tax 
all  personal  property  of  its  residents,  notwithstand- 
ing its  actual  location  may  be  without  the  state.  With 
respect  to  the  same  personalty,  one  state  imposes  a 
succession  tax  in  accordance  with  the  theory  that  the 
situs  of  personal  estate  is  the  domicile  of  the  owner, 
while  another  state  imposes  it  because  the  actual  situs 


222  INHERITANCE  TAXATION. 

is  within  that  estate;  and  the  same  state  may  assume 
either  position  according  as  it  becomes  necessary  in 
order  to  reach  any  particular  property.  Clearly,  this 
is  not  entirely  consistent,  and  possibly  it  is  not  free 
from  injustice,  but  it  is  not  opposed  to  constitutional 
principles,  as  will  be  seen  in  subsequent  paragraphs, 
though  it  does  seem  to  evidence  a  disposition  on  the 
part  of  the  state  to  exert  its  taxing  power  to  the  fullest 
extent.1 

When  neither  the  property  nor  the  domicile  of  the 
owner  is  within  the  state  at  the  time  of  his  death, 
inheritance  tax  laws  of  that  state  can  have  no  opera- 
tion, at  least  unless  the  legislative  intent  to  that  ef- 
fect is  clearly  expressed,  although  his  heirs  or 
legatees  reside  therein.2 

§  171.  Real  Estate  situated  within  a  state  is,  under 
most  if  not  all  statutes,  subject  to  the  inheritance  tax 
of  that  state,  whether  or  not  the  owner  is  a  resident 
at  the  time  of  his  death  and  whether  he  dies  testate 
or  intestate.  But  real  estate  situate  without  a  state, 
though  owned  by  a  resident  thereof,  is  generally  not 
subject  to  its  inheritance  tax  law,  whether  he  dies  tes- 
tate or  intestate.  If  he  dies  intestate,  the  succession  is 
by  the  law  of  the  state  where  the  land  is  situated,  and 
hence  there  is  neither  transmission  nor  property  within 
the  jurisdiction  of  the  other  state;  if  he  makes  a  will, 
while  the  devolution  is  governed  by  the  testamentary 
instrument,  and  hence  in  a  measure  by  the  laws  of  his 
state,  still  the  inheritance  tax  statutes  have  been  con- 

i  See  Estate  of  Stanton,  142  Mich.  491,  105  N.  W.  1122;  State  v. 
District  Court,  41  Mont.  357,  109  Pac.  438;  Blackstone  v.  Miller, 
188  U.  S.  189,  47  L.  Ed.  439,  23  Sup.  Ct.  Rep.  277.  See  sec.  172  et  seq., 
poat. 

a  State  T.  Brim,  57  N.  C.  300;  Estate  of  Hood,  21  Pa.  106. 


SITUS   OP   PROPERTY — NONRESIDENCE   OP   PARTIES.          223 

strued  not  to  apply  and  thus  discriminate  against 
transmissions  by  will.8 

Some  variations  from  the  general  rule  of  the  taxa- 
tion of  successions  to  real  property  may  be  introduced 

•  Connell  r.  Crosby,  210  111.  380,  71  N.  E.  350;  Succession  of 
Westfeldt,  122  La.  836,  48  South.  281;  Matter  of  Swift,  137  N.  Y. 
77,  18  L.  E.  A.  709,  32  N.  E.  1096;  Matter  of  Enston,  46  Hun  (N. 
Y.),  506;  Lorillard  v.  People,  6  Dem.  Sur.  (N.  Y.)  268;  State  v. 
Brevard,  62  N.  C.  141;  Appeal  of  Commonwealth,  129  Pa.  338,  18 
Atl.  132.  The  Illinois  statute,  which  is  essentially  the  same  as  the 
New  York  and  perhaps  other  statutes  under  which  the  above  deci- 
sions were  rendered,  provides  that  "All  property,  real,  personal  and 
mixed,  which  shall  pass  by  will  or  by  the  intestate  laws  of  this 
state  from  any  person  who  may  die  seised  or  possessed  of  the  same 
while  a  resident  of  this  state  or,  if  decedent  was  not  a  resident  of 
this  state  at  the  time  of  his  death,  which  property  or  any  part 
thereof  shall  be  witnin  this  state":  Connell  v.  Crosby,  210  111.  380, 
71  N.  E.  350. 

In  the  above  Pennsylvania  case  it  was  decided  that  the  fact  that 
the  devisor  of  land  situate  in  Maryland  was  domiciled  at  the  time 
of  his  death  in  Pennsylvania,  and  that  the  devisee  was  a  Pennsylvania 
corporation,  made  no  difference  in  the  applicability  of  the  rule 
denying  to  state  tax  laws  an  extraterritorial  operation.  The  fol- 
lowing is  an  extract  from  the  opinion  of  the  court:  "The  collateral 
inheritance  tax  imposed  by  the  act  of  1887  upon  real  estate  is 
a  tax  upon  the  property  itself.  This  clearly  appears  from  the 
second  proviso  in  the  third  section  of  the  act,  which  is,  'and  pro- 
vided further,  that  the  tax  on  real  estate  shall  remain  a  lien  on 
the  real  estate  on  which  the  same  is  chargeable  until  paid.'  It 
has  not  been  made  .to  appear  how  the  state  of  Pennsylvania  can 
impose  a  tax  upon  real  estate  situate  in  Maryland;  and  not  only 
impose  a  tax  upon  it,  but  also  charge  it  with  a  lien  for  such  unpaid 
tax.  While  it  is  conceded  that  the  powers  of  the  state  for  taxing 
purposes  are  very  great,  they  are  necessarily  limited  to  either  prop- 
erty or  persons  within  her  borders.  All  property  of  the  citizen 
within  the  state  may  be  taxed,  and  all  such  property  outside  the 
state  as  is  drawn  to  or  follows  in  law  the  person  or  domicile  of 
the  owner,  such  as  bonds  and  mortgages,  moneys  at  interest,  etc., 
no  matter  where  situate.  But  real  estate  is  not  drawn  to  the  person 
or  domicile  of  the  owner,  for  taxation  or  any  other  purpose,  and 
hence  cannot  be  taxed  outside  of  the  jurisdiction  where  it  is  situate. 
The  taxation  of  property  involves  the  reciprocal  duty  of  protection 
on  the  part  of  the  state  levying  such  tax.  This  real  estate,  as  before 
said,  is  situate  in  the  state  of  Maryland,  and  is  subject  to  taxation 


224  INHERITANCE  TAXATION. 

in  the  case  of  an  equitable  conversion  or  the  exercise 
of  a  power  of  appointment  or  the  creation  of  a  trust 
in  a  conveyance  in  contemplation  of  or  intended  to 
take  effect  after  death,  as  has  heretofore  been  con- 
sidered.4 

§  172.  Personal  Property  of  Nonresidents. — The 
statutes  usually  impose  an  inheritance  tax  on  all  lega- 
cies of  tangible  personal  property  within  the  state, 
although  the  testator  or  owner  dies  a  resident  of 
another  state.  Thus  is  'the  fiction  that  the  situs  of 
personal  property  is  the  domicile  of  the  owner  made 
to  yield  to  the  fact.6  There  is  no  doubt  of  the  consti- 

by  the  laws  of  that  state.  If  it  had  been  devised  to  a  citizen  of 
Maryland,  it  could  not  have  been  seriously  contended  that  the  act 
of  1887  could  have  been  enforced  against  him.  Does  it  make  any 
difference  that  the  devisee  is  a  Pennsylvania  corporation?  We  think 
not.  It  may  be  that  the  state  might  impose  a  succession  tax  upon 
every  citizen  of  the  state  who  succeeds  to  either  real  or  personal 
estate,  from  whatever  source  received.  This  is  not  such  tax,  how- 
ever. It  is  a  direct  tax  upon  the  thing  devised  in  the  hands  of  the 
devisee,  a  tax  which  the  state  is  powerless  to  enforce.  The  execu- 
tor cannot,  &8  in  the  case  of  a  legacy,  deduct  it  from  the  legacy. 
He  has  nothing  to  do  with  it,  and  the  state  itself  cannot  exercise 
extraterritorial  taxing  power  as  to  real  estate,  and  carry  into  another 
state,  and  enforce  there,  its  remedies  for  the  collection  of  taxes." 

Leases  of  land  in  Japan  at  a  fixed  rent  so  long  as  the  rent  should 
be  paid  are  in  the  nature  of  real  estate,  and  not  subject  to  the 
transfer  tax  of  New  York  when  the  tenant  dies  domiciled  in  that 
state:  Estate  of  Vivanti,  63  Misc.  Eep.  618,  118  N.  Y.  Supp.  680. 

*  Sees.  54,  83,  116,  ante. 

s  Matter  of  James,  144  N.  Y.  6,  38  N.  E.  961,  affirming  77  Hun, 
211,  28  N.  Y.  Supp.  351,  and  reversing  6  Misc.  Hep.  206,  27  N.  Y. 
Supp.  288;  Estate  of  Ramsdill,  190  N.  Y.  492,  18  L.  R.  A.,  N.  S.,  946, 
83  N.  E.  584;  Matter  of  Enston,  5  Dem.  Sur.  (N.  Y.)  93,  19  Abb. 
N.  C.  227;  Estate  of  Vinot,  7  N.  Y.  Supp.  517;  Matter  of  Chabot, 
44  App.  Div.  340,  60  N.  Y.  Supp.  927,  affirmed,  167  N.  Y.  280,  60 
N.  E.  598;  Alvany  r.  Powell,  55  N.  C.  51;  Estate  of  Speers,  4  Ohio 
N.  P.  238;  Commonwealth  v.  Smith,  5  Pa.  142. 

In  the  recent  case  of  People  v.  Griffith,  245  111.  532,  92  N.  E.  313, 
in  passing  upon  the  question  whether  the  transfer  of  personal  prop- 
erty of  a  nonresident  actually  present  in  Illinois  was  taxable  under 
its  laws,  the  court  said:  "Counsel  for  appellees  argue  that  in  con- 


SITUS   OF  PROPERTY — NONRESIDENCE   OF   PARTIES.          225 

tutionality  of  this  manner  of  taxation,  for  clearly  the 
state  may  impose  a  tax  on  property  and  its  transmis- 
sion which  enjoys  the  protection  of  its  laws,  and  this 

struing  the  inheritance  tax  statute,  if  there  is  doubt  as  to  the  mean- 
ing of  any  of  its  provisions,  the  rule  that  the  situs  of  the  personal 
property  follows  the  domicile  of  its  owner  should  be  followed.  The 
English  rule  is  that  in  these  matters  the  maxim  'Mobilia  sequuntur 
personam'  applies,  and  such  tax  on  personal  property  is  levied  only 
at  the  domicile  of  the  decedent:  Thompson  v.  Advocate  General, 
12  Clark  &  F.  1;  Dos  Passes  on  Inheritance  Tax  Law,  2d  ed.,  149. 
In  many  of  our  states  the  actual  or  real  situs  of  the  property  having 
a  visible  and  tangible  existence,  rather  than  the  domicile  of  the 
owner,  has  been  the  place  for  the  fixing  of  such  taxes:  Dos  Passos 
on  Inheritance  Tax  Law,  2d  edv  167.  The  tendency  of  modern  legis- 
lation in  this  country  is  to  extend  the  state's  taxing  power  to  ajl 
property  within  its  jurisdiction  (27  Am.  &  Eng.  Ency.  of  Law,  2d  ed., 
650),  and  this  is  especially  true  as  to  inheritance  taxes  on  the  right 
of  succession  to  all  property,  whether  real  or  personal,  tangible  or 
intangible,  which  passes,  testate  or  intestate,  from  decedents  to  other 
persons. 

"The  ancient  maxim  'that  movables  follow  the  domicile  of  the 
person*  was  an  outgrowth  of  conditions  which  have  long  since  ceased 
to  exist,  and  the  rule  has  been  greatly  limited  in  certain  matters, 
such  as  taxation  and  the  subjecting  of  personal  property  of  non- 
residents to  the  claims  of  local  creditors.  It  is  usually,  however,  the 
law  that  personal  property  is  sold,  transmitted,  or  obtained  under 
the  will  or  intestate  laws  according  to  the  law  of  the  domicile,  and 
not  that  of  the  situs  of  the  property:  Davis  v.  Upson,  230  111.  327, 
82  N.  E.  824;  Eidman  v.  Martinez,  184  U.  S.  578,  46  L.  Ed.  697,  22 
Sup.  Ct.  Eep.  515.  The  law  as  to  probating  foreign  wills  has  been 
modified  by  the  legislature  of  this  state  as  to  personal  property  since 
the  decision  in  Davis  v.  Upson,  supra:  Laws  1909,  sec.  10,  p.  472. 
An  inheritance  tax  is  not  upon  the  property  itself,  but  upon  the 
right  to  succeed  to  the  property:  United  States  v.  Perkins,  163  U. 
S.  625,  41  L.  Ed.  287,  16  Sup.  Ct.  Rep.  1073;  Magoun  v.  Illinois 
Trust  &  Savings  Bank,  170  U.  S.  283,  42  L.  Ed.  1037,  18  Sup.  Ct. 
Rep.  594.  The  laws  that  govern  the  descent  and  devise  of  prop- 
erty are  statutory,  and  are  subject  to  legislative  change,  at  dis- 
cretion: Kochersperger  T.  Drake,  167  El.  122,  41  L.  R.  A.  446,  47 
N.  E.  321.  The  succession  to  the  ownership  of  property  being  by 
permission  of  the  state,  the  state  can  impose  conditions  in  granting 
such  privilege  or  permission.  The  courts,  therefore,  have  upheld 
the  imposition  of  an  inheritance  tax  whenever  the  state  had  juris- 
diction of  the  beneficiary  or  the  subject  matter,  regardless  of  the 
actual  location  of  the  personal  property  or  the  domicile  of  the 
decedent.  It  has  been  held  that  a  tax  could  be  collected  on  a  deposit 
16 


226  INHERITANCE  TAXATION. 

although  the  state  of  the  owner's  domicile  may  also 
tax  the  succession,  fhe  property  is  in  fact  within 

left  by  a  nonresident  testator  with  a  trust  company  in  New  York, 
and  also  on  a  debt  due  him  in  the  same  state  (Blackstone  r.  Miller, 
188  U.  S.  189,  47  L.  Ed.  439,  23  Sup.  Ct.  Eep.  277);  the  theory  being 
that  the  transfer  of  the  deposit  was  subject  to  the  laws  of  New 
York,  and  that  the  collection  of  the  debt  could  only  be  enforced 
because  of  the  control  of  the  state  courts  over  the  debtor.  Stocks 
and  bonds  of  domestic  corporations  and  bonds  of  foreign  corporations 
owned  by  a  nonresident  decedent  but  deposited  in  the  state  have 
been  held  subject  to  such  tax:  In  re  Whiting,  150  N.  Y.  27,  55  Am. 
St.  Rep.  640,  34  L.  E.  A.  232,  44  N.  E.  715;  In  re  Morgan,  150  N. 
Y.  35,  44  N.  E.  1126.  Tangible  personal  property  outside  of  the 
state,  of  a  resident  decedent,  has  been  held  subject  to  this  tax 
(In  re  Swift,  137  N.  Y.  77,  18  L.  E.  A.  709,  32  N.  E.  1096),  as 
has  been,  also,  the  stock  of  a  foreign  corporation  (In  re  Merriam, 
141  N.  Y.  479,  36  N.  E.  505).  The  liability  of  property  to  an  in- 
heritance tax  does  not  depend  upon  the  location,  but  upon  whether 
the  beneficiary  came  into  its  possession  through  the  exercise  of  a 
privilege  conferred  by  the  state:  Matter  of  Hull's  Estate,  111  App. 
Div.  322,  97  N.  Y.  Supp.  701.  The  question  in  this  case,  as  in  all 
other  cases,  is  not  the  constitutional  power  of  the  legislature  to  levy 
an  inheritance  tax  upon  personal  property  of  a  nonresident  decedent, 
whether  such  property  be  tangible  or  intangible,  since  that  has  been 
firmly  established,  but  is  as  to  the  intent  to  do  so  under  the  particular 

act  in  question 'Laws  imposing  general  taxes  upon  real  and 

personal  property  are  not  controlling  when  applied  to  taxes  upon 
the  succession,  when  such  succession  takes  place  and  is  governed 
by  the  laws  of  a  foreign  country.  The  actual  situs  of  the  property 
in  such  cases  cuts  but  a  small  figure,  while  in  the  case  of  general 
taxes  upon  such  property  it  is  now  considered  determinative  of  the 
whole  question':  Eidman  v.  Martinez,  184  U.  S.  589,  46  L.  Ed.  697, 
22  Sup.  Ct.  Eep.  515." 

Where  a  man  dies  intestate  and  domiciled  in  another  state  and  leaves 
personal  property  in  the  state  of  his  domicile,  and  two  weeks  after- 
ward his  sister,  who  is  domiciled  in  Pennsylvania  and  is  entitled  to  a 
share  of  his  estate,  also  dies  before  actually  receiving  any  of  the  estate, 
such  share  ia  liable  to  the  collateral  inheritance  tax  of  Pennsylvania: 
Estate  of  Milliken,  206  Pa.  149,  55  Atl.  853. 

Where  a  resident  of  France,  entitled  to  a  share  of  a  residuary  estate 
under  a  will  admitted  to  probate  in  New  York,  died  before  his  share 
was  paid  to  him,  and  it  is  paid  to  his  executor  and  trustee  under  his 
will,  also  admitted  to  probate  in  New  York,  his  share  of  such  residuary 
estate  is  subject  to  the  inheritance  tax.  It  is  not  exempt  on  the  ground 
that  at  the  time  of  his  death  his  interest  was  a  mere  chose  in  action 


SITUS   OF   PROPERTY — NONRESIDENCE   OP   PARTIES.          227 

the  jurisdiction  of  the  state  and  subject  to  its  do- 
minion, regardless  of  the  domicile  of  the  owner.8 

whose  situs  was  at  his  domicile  in  France:  Estate  of  Clinch,  180  N.  Y. 
300,  73  N.  E.  36. 

In  Estate  of  Lord,  111  App.  Div.  152,  97  N.  Y.  Supp.  553,  affirmed, 
186  N.  Y.  549,  79  N.  E.  1110,  a  nonresident  made  his  wife  his  residuary 
legatee,  and  the  will  was  probated  in  another  state.  Before  distribu- 
tion the  wife  died  testate,  and  the  executor  of  the  husband's  will  removed 
from  the  state  of  New  York  property  that  passed  to  her  executor  under 
the  residuary  bequest.  Her  will  was  also  probated  in  another  state, 
and  disposed  of  this  property.  It  was  held  that  the  property  thus  re- 
moved was  not  subject  to  the  New  York  transfer  tax  on  distribution 
under  the  wife's  will.  In  rendering  its  decision  the  court  quotes  the 
language  of  Justice  Vann  in  Matter  of  Houdayer,  150  N.  Y.  37,  55  Am. 
St.  Rep.  642,  34  L.  R.  A.  235,  44  N.  E.  718,  as  follows:  "A  reasonable 
test  in  all  cases,  as  it  seems  to  me,  is  this:  Where  the  right,  whatever 
it  may  be,  has  a  money  value  and  can  be  owned  and  transferred,  but 
cannot  be  enforced  or  converted  into  money  against  the  will  of  the 
person  owning  the  right  without  coming  into  this  state,  it  is  properly 
within  this  state  for  the  purposes  of  a  succession  tax." 

Where  a  resident  of  Massachusetts  died  leaving  his  property  to  his 
widow,  and  at  the  time  of  his  death  he  was  residuary  legatee  of  an 
estate  in  process  of  settlement  in  New  York,  it  was  held  that  he  had  no 
property  in  New  York  at  the  time  of  his  death,  but  merely  a  future 
right  of  action,  and  that  a  transfer  tax  thereon  need  not  be  paid  by 
his  ancillary  administrator  in  New  York:  In  re  Phipps,  77  Hun,  325, 
28  N.  Y.  Supp.  330,  affirmed,  143  N.  Y.  641,  37  N.  E.  823. 

In  Iowa  under  a  statute  imposing  an  inheritance  tax  on  the  transmis- 
sion of  all  property  within  the  jurisdiction  of  the  state  it  has  been 
decided  that  when  a  resident  of  that  state  dies  owning  cattle  in  another 
state  which  pass  under  his  will,  they  are  not  subject  to  the  inheritance 
tax  of  Iowa,  nor  are  their  proceeds  when  brought  into  the  state  for 
distribution :  Weaver's  Estate  v.  State,  110  Iowa,  328,  81  N.  W.  603. 

In  New  Hampshire  it  is  affirmed  that  an  estate  embraces  all  property 
originally  within  the  state,  or  that  the  executor  has  been  able  to  find 
elsewhere  and  bring  therein,  and  whatever  sums  he  may  have  to  pay  to 
bring  the  property  within  the  state  merely  reduces  the  amount  within  the 
control  of  the  court:  Kingsbury  v.  Bazeley,  75  N.  H.  13,  139  Am.  St! 
Bep.  664,  20  Ann.  Cas.  1355,  70  Atl.  916. 

Personal  property  in  the  United  States,  which  passes  under  the  will 
of  an  alien,  made  in  New  York  during  his  temporary  sojourn  there, 
is  not  subject  to  the  inheritance  tax  imposed  by  the  war  revenue  act 
of  1898:  Kuckgaber  v.  Moore,  104  Fed.  947,  31  Civ.  Proc.  Rep.  310, 
affirmed,  114  Fed.  1020,  52  C.  C.  A.  587;  affirmed,  Moore  v.  Ruckgaber, 
184  U.  S.  593,  46  L.  Ed.  705,  22  Sup.  Ct.  Rep.  521. 

•  Callahan  v..  Woodbridge,  171  Mass.  595,  51  N.  E.  176;  Estate  of 
Rogers,  149  Mich.  305,  119  Am.  St.  Rep.  677,  11  L.  R.  A.,  N.  S.,  1134, 


228  INHERITANCE  TAXATION. 

"No  one  doubts,"  to  quote  from  Justice  Holmes, 
"that  succession  to  a  tangible  chattel  may  be  taxed 
wherever  the  property  is  found,  and  none  the  less  that 
the  law  of  the  situs  accepts  its  rules  of  succession  from 
the  law  of  the  domicile,  or  that  by  the  law  of  the 
domicile  the  chattel  is  part  of  a  universitas  and  is 
taken  into  account  again  in  the  succession  tax  there. 
No  doubt  this  power  on  the  part  of  two  states  to  tax 
on  different  and  more  or  less  inconsistent  principles 
leads  to  some  hardship.  It  may  be  regretted,  also, 
that  one  and  the  same  state  should  be  seen  taxing 
on  the  one  hand  according  to  the  fact  of  power,  and 
on  the  other,  at  the  same  time,  according  to  the  fic- 
tion that,  in  succession  after  death,  mobilia  sequuntur 
personam  and  domicile  governs  the  whole.  But  these 
inconsistencies  infringe  no  rule  of  constitutional  law. 
....  Power  over  the  person  of  the  debtor  confers 
jurisdiction,  we  repeat.  And  this  being  so,  we  per- 
ceive no  better  reason  for  denying  the  right  of  New 
York  to  impose  a  succession  tax  on  debts  owed  by  its 
citizens  than  upon  tangible  chattels  found  within 
the  state  at  the  time  of  the  death.  The  maxim,  'Mo- 
bilia sequuntur  personam,'  has  no  more  truth  in  the 
one  case  than  in  the  other.  When  logic  and  the  policy 
of  a  state  conflict  with  a  fiction  due  to  historical  tra- 
dition, the  fiction  must  give  way. ' ' 7 

The  power  of  the  state  in  the  matter  of  imposing  an 
inheritance  tax  on  personal  property  within  its  borders 
belonging  to  a  nonresident  is  over  the  property  rather 
than  over  the  succession;  the  right  to  impose  the  tax 
in  such  case  is  based  on  the  dominion  of  the  state  over 
the  property  situated  within  its  territory.8 

112  N.  W.  931;  Blackstone  v.  Miller,  188  U.  S.  189,  47  L.  Ed.  439,  23 
Sup.  Ct.  Eep.  277. 

T  Blackstone  v.  Miller,  188  U.  S.  206,  47  L.  Ed.  439,  23  Sup.  Ct.  Rep. 
277,  approved  in  Neilson  v.  Eussel,  76  N.  J.  L.  27,  69  Atl.  476. 

«  Kingsbury  v.  Bazeley,  75  N.  H.  13,  139  Am.  St.  Eep.  664,  20  Ann. 
Gas.  1355,  70  Atl.  916;  Matter  of  Bronson,  150  N.  Y.  1,  55  Am.  St.  Eep. 


SITUS   OF  PROPERTY — NONRESIDENCE   OF   PARTIES.          229 

In  Tennessee,  under  a  statute  providing  that  all  es- 
tates, real,  personal  and  mixed,  situated  within  the 
state,  whether  the  person  dying  seised  thereof  be  domi- 
ciled within  or  without  the  state,  passing  to  any  per- 
son other  than  to  the  father,  mother,  husband,  wife, 
children,  and  lineal  descendants  of  the  deceased,  shall 
be  subject  to  a  tax,  it  has  been  held  that  when,  under 
the  laws  of  a  decedent's  domicile,  the  property  passed 
to  his  mother,  it  could  not  be  taxed  in  Tennessee,  al- 
though under  its  law  the  property  would  have  passed 
to  a  brother.8 

Under  a  statute  imposing  a  tax  on  property  "pass- 
ing from  any  person  who  may  die  seised  and  pos- 
sessed thereof,  being  in  this  state,"  to  any  person 
not  of  certain  enumerated  relatives  of  deceased  per- 
sons, the  words  "being  in  the  state"  refers  to  the 
property,  not  to  the  person.10 

§  173.    Personal  Property  in  Foreign  States.— In  a 

majority  of  the  states  the  personal  property  of  a  resi- 
dent decedent  is  held  subject  to  the  inheritance  tax 
of  the  state,  although  actually  situated  in  another  state 
where  it  may  also  be  taxed  by  the  statutes  of  that 
state.  Otherwise  stated,  personal  property  within  the 
jurisdiction  of  a  foreign  state  is  subject  to  the  inherit- 
ance tax  at  the  place  of  the  decedent's  domicile.  This 
is  on  the  theory  that  the  tax  is  imposed  upon  the  trans- 
mission of  the  property,  and  that  the  transmission  of 
personal  property  is  governed  by  the  law  of  the  domi- 
cile of  the  owner.11 

632,  34  L.  E.  A.  238,  44  N.  E.  707 ;  Estate  of  Embury,  19  App.  Div.  214, 
45  N.  Y.  Supp.  881,  affirmed,  154  N.  Y.  746,  49  N.  E.  1096;  Estate  of 
Fitch,  39  App.  Div.  609,  57  N.  Y.  Supp.  786. 

•  Fidelity  &  Deposit  Co.  v.  Crenshaw,  120  Tenn.  606,  110  8.  W.  1017. 

10  State  v.  Dalrymple,  70  Md.  294,  3  L.  B.  A.  372,  17  Atl.  82;  Com- 
monwealth v.  Smith,  5  Pa.  142;  Estate  of  Short,  16  Pa.  63. 

11  Appeal  of    Gallup,  76    Conn.  617,  57    Atl.  699;   Frothingham  v. 
Shaw,  175  Mass.  59,  78  Am.  St.  Kep.  475,  55  N.  E.  623;  McCurdy  v. 


230  INHERITANCE  TAXATION. 

In  speaking  of  the  Connecticut  statute,  the  supreme 
court  of  that  state  uses  this  language:  "The  act  is 
framed  in  view  of  the  principle  that  personal  property 
is  bequeathed  by  will  and  is  descendible  by  inherit- 
ance according  to  the  law  of  the  domicile,  and  that  the 
disposition,  distribution  of,  and  succession  to  personal 
property,  wherever  situated,  is  to  be  governed  by  the 
laws  of  that  state  where  the  owner  had  his  domicile 
at  the  time  of  his  death.  It  is  the  intent  and  meaning 
of  the  act,  as  expressed  through  all  its  provisions  and 
all  the  language  used  in  view  of  these  provisions,  to 
provide  for  a  succession  tax  of  this  kind,  namely,  a 
death  duty  upon  the  occasion  of  the  succession  to  all 
the  personal  property  of  a  decedent,  wherever  situ- 
ated, which  takes  place  in  consequence  of  his  death 
within  the  jurisdiction  of  this  state  when  such  dece- 
dent was  a  domiciled  resident  thereof,  measured  as  to 
amount  in  the  manner  described,  and  payable  by  the 
administrator  from  any  property  remaining  after  the 
estate  has  been  cleared,  necessary  to  be  used  for  the 
payment  of  the  whole  duty. ' ' " 

And  the  New  Jersey  court,  in  holding  that  the  situs 
of  personal  property  of  a  testator,  for  the  purpose  of 
the  inheritance  tax,  is  his  domicile  at  the  time  of  his 
death,13  observes  that  the  result,  in  the  case  before 
it,  "will  be  the  requirement  of  the  payment  of  two 
taxes  of  like  character  by  the  same  legatees  for  the 
right  of  succession  to  the  gifts  of  the  testatrix;  but 
this  unfortunate  situation  cannot  control  the  deter- 
mination of  the  questions  presented,  for  such  a  condi- 
tion frequently  arises,  and,  while  its  presence  always 

McCurdy,  197  Mass.  248,  14  Ann.  Cas.  859,  16  L.  R.  A.,  N.  S.,  329.  83 
N.  E.  881 ;  Matter  of  Swift,  137  N.  Y.  77,  18  L.  B.  A.  709,  32  N.  E.  1096, 
reversing  64  Hun,  639,  19  N.  Y.  Supp.  292 ;  Estate  of  Dingman,  66  App. 
Div.  228,  72  N.  Y.  Supp.  694;  Estate  of  Lines,  155  Pa.  378,  26  Atl.  728. 

12  Appeal  of  Hopkins,  77  Conn.  644,  60  Atl.  657. 

ia  Estate  of  Hartman,  70  N.  J.  Eq.  664,  62  Atl.  560. 


SITUS   OP   PROPERTY — NONRESIDENCE   OF   PARTIES.          231 

induces  most  careful  consideration  on  the  part  of  the 
court  to  find  some  legal  method  to  prevent  it,  it  must 
be  submitted  to  unless  it  can  be  avoided  under  settled 
rules  relating  to  the  subject.  The  law  of  New  York  on 
this  subject  is  for  all  practicable  purposes  identical 
with  the  law  of  this  state,  and  in  construing  it  Judge 
Gray "  presents  very  strong  and  cogent  reasons  in 
support  of  his  opinion  that  the  tax  provided  for  is  only 
enforceable  as  to  property  which,  at  the  time  of  its 
owner's  death,  was  within  the  territorial  limits  of  the 
domiciliary  state;  but  the  majority  of  the  court  were 
not  convinced  by  his  reasoning,  and  held  that  personal 
property  of  a  resident  decedent,  wheresoever  situated, 
whether  within  or  without  the  state,  was  subject  to 
the  tax  imposed  by  the  act.  The  great  weight  of  au- 
thority favors  the  principle  adopted  by  the  New  York 
court  of  appeals,  holding  that  the  tax  imposed  is  on 
the  right  of  succession  under  a  will,  or  by  devolution 
in  case  of  intestacy,  and  that  as  to  personal  property 
its  situs,  for  the  purpose  of  a  legacy  or  succession  tax, 
is  the  domicile  of  the  decedent,  and  the  right  of  its 
imposition  is  not  affected  by  the  statute  of  a  foreign 
state  which  subjects  to  similar  taxation  such  portion 
of  the  personal  estate  of  any  nonresident,  testator, 
or  intestate  as  he  may  take  and  leave  there  for  safe- 
keeping, or  until  it  should  suit  his  convenience  to  carry 
it  away.'* 

§  174.  Marshaling  Assets — Massachusetts  Rule. — 
The  marshaling  of  assets  in  the  case  of  a  nonresident 
decedent  leaving  personal  property  in  the  state  pre- 
sents a  delicate  question.14*  In  Massachusetts  the  rule 
appears  to  be  that  the  executor  should  so  marshal 
the  assets  of  the  estate  as  not  to  deprive  the  state 

i*  Estate  of  Swift,  137  N.  Y.  77,  18  L.  B.  A.  709,  32  N.  E.  1096. 
n»  Wieting  v.  Morrow,  151   Iowa,  590,   132  N.  W.   193;    Estate  of 
Clark,  37  Wash.  671,  80  Pac.  267. 


232  INHERITANCE  TAXATION. 

of  its  tax.  The  supreme  court  of  that  state,  after 
laying  down  the  rule  that  personal  property  within  the 
jurisdiction  of  a  foreign  state  is  subject  to  a  succes- 
sion tax  in  the  place  of  the  decedent's  domicile,  de- 
clares: ''This  doctrine  furnishes  a  strong  implication 
that  personal  property  in  the  decedent's  domicile 
should  not  be  used  to  relieve  property  subject  to  a 
succession  tax  under  the  ancillary  administration  of 
another  state  by  discharging  liens  upon  it  for  the  pur- 
pose of  increasing  this  succession  tax.  The  tax  is 
to  be  estimated  in  reference  to  the  property  that  is 
within  the  jurisdiction  of  the  commonwealth  at  the 
time  of  the  testator's  death."15 

On  a  subsequent  occasion  the  Massachusetts  court, 
following  the  rule  previously  enunciated  that  property 
passes  and  becomes  vested  at  the  death  of  the  dece- 
dent, holds  that  the  executor  of  a  decedent,  who  died 
in  New  Hampshire,  leaving  property  in  Massachusetts 
as  well  as  in  New  Hampshire,  cannot  use  stock  held 
by  the  decedent  in  Massachusetts  corporations  to  pay 
debts  and  legacies  exempted  from  the  succession  tax, 
and  so  relieve  the  property  in  Massachusetts  from 
the  imposition  of  such  tax.18 

§  175.  Marshaling  Assets — New  York  Rule. — The 
New  York  courts  seem  to  incline  to  the  rule  that  the 
executor  should  marshal  the  assets  in  favor  of  the 
legatee,  and  not  so  as  to  increase  the  legacy  tax.  A 
case  arose  in  that  state  involving  these  facts:  A  de- 
cedent domiciled  in  Great  Britain  left  property  there 
as  well  as  in  New  York.  He  gave  legacies  to  col- 
lateral relatives,  and  left  the  residue  of  his  estate  to 
his  two  brothers.  The  executor  paid  the  collateral 
legacies  out  of  the  property  situated  in  Great  Britain, 

«  MeCurdy  v.  McCurdy,  197  Mass.  248,  83  N.  E.  881. 
i«  Kingsbury  v.  Chapin,  196  Mass.  533,  13  Ann.  Cas.  738,  82  N.  E. 
700. 


SITUS   OF  PROPERTY — NONRESIDENCE   OP  PARTIES.          233 

leaving  the  property  situated  in  New  York  to  go  into 
the  residuary  estate,  and  thus  to  the  brothers  of  the 
decedent.  The  New  York  court  held  that  the  devo- 
tion of  the  New  York  property  to  the  payment  of  the 
decedent's  brothers,  who  were  in  the  exempt  class  un- 
der the  New  York  statute,  rendered  that  property 
immune  from  the  imposition  of  the  collateral  inherit- 
ance tax  of  that  state.  The  court  said:  "If  the  execu- 
tor determines  to  pay  the  legacies  from  the  British 
estate,  the  American  estate  is  thereby  freed  from  the 
burden  of  a  special  tax,  the  imposition  of  which  de- 
pends upon  the  fact  of  the  succession  by  the  legatee 
to  some  property  which  is  within  the  state.  If  the 
American  estate  is  appropriated  to  persons  who  are 
within  the  excepted  degrees  of  relationship  to  the  tes- 
tator, the  right  to  claim  the  tax  from  the  executor 
is  gone."  1T 

In  a  subsequent  case18  the  court  of  appeals  of  New 
York  decides  that  an  administrator  of  a  nonresident 
decedent,  leaving  him  surviving  a  brother  and  nieces 
and  nephews,  cannot,  by  electing  to  appropriate  all 
the  assets  within  the  state  to  the  payment  of  the 
distributive  share  of  the  brother,  avoid  payment  on 
the  share  of  the  nieces  and  nephews  of  the  transfer 
tax,  which  in  case  of  a  nonresident  intestate  is  based 
on  that  portion  of  his  estate  found  within  the  state, 
since  under  the  intestate  laws  a  distributee  takes  an 
undivided  interest  in  the  entire  estate.  In  the  course 
of  its  opinion  the  court  says:  "The  Massachusetts 
court  went  so  far  as  to  hold  that  in  no  case  can  an  exec- 
utor so  marshal  the  assets  of  an  estate  as  to  deprive  the 
state  of  its  tax;  but  the  facts  which  clearly  differen- 

IT  Estate  of  James,  144  N.  Y.  6,  38  N.  E.  961.  See,  too,  Estate  of 
McEwan,  51  Misc.  Rep.  455,  101  N.  Y.  Supp.  733. 

is  Estate  of  Ramsdill,  190  N.  Y.  492,  18  L.  B.  A.,  N.  S.,  946,  83  N.  E. 
584, 


234  INHERITANCE  TAXATION. 

tiate  the  case  at  bar  from  Matter  of  James  "  incline 
us  to  a  confirmation  of  the  views  expressed  in  the 
latter  case,  which  we  emphasize  by  repeating  them. 
When  a  specific  foreign  legatee  of  a  foreign  testator 
can  obtain  satisfaction  of  his  legacy  in  a  foreign  juris- 
diction, the  executor  cannot  be  compelled  to  pay  such 
a  legacy  out  of  the  assets  within  our  jurisdiction. 
This  is  the  necessary  result  of  the  practical  and  ob- 
vious distinction  between  testacy  and  intestacy  as 
applied  to  the  subject  of  taxation.  If  a  specific  legatee 
needs  not  the  intervention  of  our  laws  or  courts  to 
obtain  what  comes  to  him  under  a  foreign  will, 
through  foreign  assets,  in  a  foreign  jurisdiction,  our 
laws  cannot  coerce  an  executor  into  paying  his  legacy 
out  of  funds  within  our  jurisdiction  for  the  sole  pur- 
pose of  exacting  a  tax.  But  in  a  case  of  intestacy 
the  rule  is  essentially  different,  because  the  distribu- 
tee takes  an  undivided  interest  in  the  whole  estate; 
and,  if  part  of  it  happens  to  be  within  our  jurisdiction, 
he  can  only  get  his  share  of  what  is  here  under  our 
laws  and  through  our  courts.  This  is  the  theory  upon 
which  the  nephews  and  nieces  of  the  intestate  in  the 
case  at  bar  are  clearly  taxable  under  our  statute." 

According  to  a  decision  of  the  supreme  court  of 
New  York,  the  property  of  a  nonresident  located  in 
that  state  is  not  subject  to  the  transfer  tax,  if  his 
indebtedness  to  resident  creditors  exceeds  the  value  of 
the  property  within  the  state,  and  the  fact  that  the 
executor  brings  money  of  the  decedent  from  without 
the  state  and  pays  debts,  so  that  securities  in  the  state 
can  be  transmitted  to  be  administered  at  the  domicile 
of  the  decedent,  is  immaterial.20 

i»  Estate  of  James,  144  N.  Y.  6,  38  N.  E*.  961. 

20  Estate  of  Grosvenor,  124  App.  Div.  331,  108  N.  Y.  Supp.  926; 
Estate  of  King,  71  App.  Div.  581,  76  N.  Y.  Supp.  220,  affirmed,  172 
N.  Y.  616,  64  N.  E.  1122. 


SITUS   OP   PROPERTY — NONRESIDENCE   OP   PARTIES.          235 

§  176.    Marshaling  Assets — New  Jersey  Rule. — The 

New  Jersey  court,  after  reviewing  the  Massachusetts 
and  New  York  decisions,  comes  to  the  conclusion  that, 
apart  from  strictly  specific  legacies,  there  is  no  sub- 
stantial ground  for  differentiating  the  administration 
of  an  estate  by  an  administrator  from  the  administra- 
tion of  an  estate  by  an  executor,  in  respect  to  the 
question  here  under  consideration.  The  court  affirms 
that  where  a  nonresident  dies  intestate,  and  a  portion 
of  his  estate  has  its  situs  in  New  Jersey,  and  there  are 
distributees  belonging  to  both  classes — taxable  and 
exempt — that  portion  of  his  estate  within  the  state  is 
taxable;  and  the  court  further  affirms  that  where  a 
testator  dies  domiciled  in  the  state  of  New  York, 
leaving  property  in  that  state  and  also  in  New  Jersey, 
and  leaving  bequests  to  persons  which  are  exempt  and 
bequests  to  persons  which  are  taxable,  under  the  New 
Jersey  inheritance  tax  statute,  the  executor  cannot  re- 
lieve the  property  in  New  Jersey  from  taxation  by 
applying  it  to  the  payment  of  exempt  legacies,  and  by 
paying  the  taxable  legacies  out  of  the  New  York  prop- 
erty.21 

§  177.  Money  and  Deposits  in  Banks  or  Trust  Com- 
panies, physically  and  more  than  transiently  present 
in  a  state,  belonging  to  a  nonresident,  may  there  be 
subject  to  the  inheritance  tax,  notwithstanding  the 
fund  may  be  also  liable  to  a  tax  under  the  law  of  the 
state  of  the  owner's  residence;  for  the  fund  is  actually 
within  the  state  and  under  the  protection  and  domin- 
ion of  its  laws.  Here  again  is  the  fiction  that  the  situs 
of  personal  property  is  at  the  residence  of  the  owner 
made  to  yield  to  the  truth."  This  rule  has  been  ap- 

21  Tilford  v.  Dickinson,  79  N.  J.  L.  302,  75  Atl.  574. 

2»  Callahan  v.  Woodbridge,  171  Mass.  595,  51  N.  E.  176;  Estate  of 
Houdayer,  150  N.  Y.  37,  55  Am.  St.  Rep.  642,  34  L.  B.  A.  235,  44  N.  E. 
718,  reversing  3  App.  Div.  474,  38  N.  Y.  Supp.  323;  Estate  of  Black- 


236  INHERITANCE  TAXATION. 

plied  to  deposits  in  savings  banks ; 28  money,  represent- 
ing the  proceeds  of  the  sale  of  stock  in  a  foreign  cor- 
poration, deposited  with  a  trust  company;  •*  and  to 
money  deposited  with  a  broker  to  margin  stock  trans- 
stone,  69  App.  Div.  127,  74  N.  Y.  Supp.  508,  171  N.  Y.  682,  64  N.  E. 
1118,  affirmed,  Blackstone  v.  Miller,  188  U.  S.  189,  47  L.  Ed.  439,  23 
Sup.  Ct.  Rep.  277;  Estate  of  Burden,  47  Misc.  Eep.  329,  95  N.  Y.  Supp. 
972. 

In  the  Blackstone  case,  which  has  become  a  leading  decision  on  the 
question,  it  was  held  that  a  tax  might  be  levied  upon  a  deposit  of  money 
with  a  trust  company,  although  the  depositor  was,  both  at  the  time  of 
making  the  deposit  and  at  the  time  of  his  death,  a  resident  of  another 
state.  This  holding  is  approved  in  Estate  of  Fearing,  138  App.  Div. 
881,  123  N.  Y.  Supp.  396,  affirmed,  200  N.  Y.  340,  93  N.  E.  956,  where 
it  is  decided  that  a  deposit  in  New  York  of  a  trust  fund,  the  deposit 
being  subject  to  power  of  appointment  by  a  nonresident,  and  being  in 
the  individual  name  of  one  of  the  trustees,  who  does  not  claim  it  as 
against  the  estate,  is  subject  to  the  transfer  tax.  The  appointment 
acted  directly  upon  the  fund  in  deposit,  and  did  not  transfer  a  mere 
right  of  action  against  the  trustee. 

The  Blackstone  case  was  again  affirmed  in  Estate  of  Myers,  129  N.  Y. 
Supp.  194,  holding  that  money  of  a.  nonresident  on  deposit  in  New  York 
for  nearly  two  months  before  the  death  of  the  depositor  was  taxable, 
and  that  the  contention  of  the  executrix  that  the  money  was  there  tem- 
porarily and  for  investment,  and  therefore  not  subject  to  the  transfer 
tax,  was  untenable. 

The  doctrine  of  the  foregoing  cases  has  been  doubted  or  given  a  re- 
stricted application  by  some  authorities:  Estate  of  Bentley,  31  Misc. 
Rep.  656,  66  N.  Y.  Supp.  95;  Allen  v.  Philadelphia  Sav.  Fund  Soc.,  Fed. 
Gas.  No.  234.  In  Estate  of  Leopold,  35  Misc.  Rep.  369,  71  N.  Y.  Supp. 
1032,  it  is  decided  that  when  a  nonresident  places  money  on  deposit  in 
New  York  for  the  purpose  of  investment  in  stock  of  a  foreign  corpora- 
tion, it  is  not  subject  to  the  transfer  tax  on  his  death  before  investment. 

In  Matter  of  Thomas,  3  Misc.  Rep.  388,  24  N.  Y.  Supp.  713,  it  is  held 
that  money  which  represents  the  distributive  share  of  the  testatrix  in 
an  estate  in  another  state,  and  did  not  come  into  the  state  of  New  York 
prior  to  the  death  of  the  testatrix,  but  was  remitted  directly  from  the 
other  state  to  the  executor  in  New  York  for  distribution  under  the  will 
of  the  testatrix,  is  not  taxable  under  the  New  York  law. 

23  Estate  of  Blackstone,  69  App.  Div.  127,  74  N.  Y.  Supp.  508,  af- 
firmed,  171   N.   Y.   682,  64  N.   E.   1118,   affirmed,   188  U.   S.   189,   47 
L.  Ed.  439,  23  Sup.  Ct.  Bep.  277. 

24  Matter  of  Romaine,  127  N.  Y.  80,  12  L.  R.  A.  401,  27  N.  E.  759; 
Estate  of  Burr,  16  Misc.  Rep.  89,  38  N.  Y.  Supp.  811. 


SITUS   OF   PROPERTY — NONRESIDENCE   OP   PARTIES.          237 

.actions,  which  could  be  withdrawn  at  any  time,  and 
is  withdrawn  after  the  death  of  the  depositor.25 

On  the  other  hand,  deposits  made  by  a  resident  of 
one  state  in  a  savings  bank  in  another  state  have  been 
held  to  be  property  within  the  jurisdiction  of  the  state 
of  the  depositor's  residence,  and  hence  subject  to  a 
similar  tax  in  the  foreign  state.26  Said  the  New 
Hampshire  court:  "The  legislature  did  not  intend  to 
impair  the  effectiveness  of  the  inheritance  tax  law  by 
making  its  operation  dependent  upon  the  action  or  non- 
action  of  other  states  with  reference  to  personal  prop- 
erty of  resident  decedents,  which  might  have  a  physical 
situs  therein;  and  there  is  no  constitutional  provision 
limiting  the  power  of  the  legislature  to  make  a  col- 
lateral inheritance  tax  applicable  to  all  property  pass- 
ing under  our  laws.  It  is  inexact  and  misleading  to 
say  that  this  result  sanctions  double  taxation,  which 
the  policy  of  this  state  does  not  tolerate.  Whether  the 
burden  imposed  by  the  inheritance  law  is  properly 
called  a  tax  it  is  unnecessary  to  inquire;  for,  if  it  is, 
the  legislature  has  not  attempted  to  impose  more  than 
a  single  tax  on  the  property  of  a  decedent  passing  col- 
laterally under  our  laws.  If  some  other  state  makes 
a  claim  to  the  property  under  its  tax  laws  and  for  the 
support  of  its  institutions,  the  exercise  of  such  power, 
whether  rightful  or  wrongful,  does  not  make  the  exer- 
cise of  similar  power  by  this  state,  for  the  support  of 
its  institutions,  illegal  on  the  ground  of  double  taxa- 
tion. The  two  burdens  are  created  by  different  and 
independent  states,  for  wholly  different  local  pur- 
poses, and  are  as  distinct  and  as  irrelevant  the  one  to 
the  other,  on  the  question  of  double  taxation,  as  were 

»  Estate  of  Daly,  100  App.  Div.  373,  91  N.  Y.  Supp.  858,  affirmed, 
182  N.  Y.  524,  74  N.  E.  1116. 

2«  Frothingham  v.  Shaw,  175  Mass.  59,  78  Am.  St.  Rep.  475,.  55  N. 
E.  623 ;  Mann  v.  Carter,  74  N.  H.  345,  15  L.  E.  A.,  N.  8.,  150,  68  Atl. 
130;  Estate  of  Short,  16  Pa.  63. 


238  INHERITANCE  TAXATION. 

the  two  taxes  assessed  upon  the  plaintiffs'  ice  in  Wink- 
ley  v.  Newton."  This  result  is  also  in  accord  with  the 
general  trend  of  the  authorities  upon  the  subject.  As 
said  in  Estate  of  Hartman : 28  *  The  great  weight  of 
authority  favors  the  principle  adopted  by  the  New 
York  court  of  appeals,  holding  that  the  tax  imposed  is 
on  the  right  of  succession  under  a  will,  or  by  devolution 
in  case  of  intestacy,  and  that,  as  to  personal  property, 
its  situs,  for  the  purpose  of  a  succession  tax,  is  the 
domicile  of  the  decedent,  and  the  right  to  its  imposition 
is  not  affected  by  the  statute  of  a  foreign  state,  which 
subjects  to  similar  taxation  such  portion  of  the  per- 
sonal estate  of  any  nonresident  testator  or  intestate  as 
he  may  take  and  leave  there  for  safekeeping,  or  until 
it  should  suit  his  convenience  to  carry  it  away. '  "  M 

§  178.  Debts  Due  Nonresident. — An  indebtedness 
owing  to  a  nonresident  creditor  is  held  not  taxable 
under  the  statutes  of  some  of  the  states.30  This  view 
seems  to  be  based  on  the  theory  that  the  situs  of  the 
debt  is  at  the  place  of  residence  of  the  creditor,  and 
hence  the  debt  is  not  property  within,  the  taxing  state. 
In  New  York,  however,  it  has  been  affirmed  that  a  debt 
due  a  nonresident  is  subject  as  property  to  the  transfer 
tax  of  that  state,  and  the  statute  imposing  this  tax 
has  been  upheld  as  constitutional  by  the  supreme  court 
of  the  United  States.  This  court  disregards  the  legal 
fiction  that  the  situs  of  a  debt  is  at  the  place  of  resi- 
dence of  the  creditor,  and  recognizes  the  fact  that  the 

*T  Winkley  v.  Newton,  67  N.  H.  80,  35  L.  R.  A.  756,  36  Atl.  610. 

28  Estate  of  Hartman,  70  N.  J.  Eq.  664,  62  Atl.  560. 

2»  Mann  v.  Carter,  74  N.  H.  345,  68  Atl.  130,  15  L.  R.  A.,  N.  8., 
150. 

so  Gilbertson  v.  Oliver,  129  Iowa,  568,  4  L.  R.  A.,  N.  S.,  953,  105  N. 
W.  1002;  Estate  of  Joyslin,  76  Vt.  88,  56  AtL  281;  Kintzing  v.  Hutch- 
inson,  Fed.  Caa.  No.  7834. 


SITUS   OP  PROPERTY — NONRESIDENCE   OP   PARTIES.          239 

situs  is  at  the  place  of  residence  of  the  debtor  because 
it  is  there,  if  at  all,  that  the  debt  is  enforceable.31 

Recently  it  has  been  decided  in  Nebraska  that  the 
right  to  take  by  will  a  credit  payable  in  the  state  of 
New  York,  but  evidenced  by  a  contract  for  the  sale 
of  real  estate  within  Nebraska,  executed  by  the  vendor, 
and  at  all  times  during  his  lifetime  retained  in  his  pos- 
session at  his  residence  in  New  York,  is  not  subject 
to  the  inheritance  tax  in  Nebraska.82 

§  179.  Notes,  Papers  and  Securities.— Mortgages, 
notes,  land  contracts  and  papers,  representing  prop- 
erty within  the  state,  are  there  subject  to  inheritance 
taxation,  notwithstanding  they  are  owned  by  a  non- 
resident and  are  in  his  possession  at  his  domicile  at 
the  time  of  his  death.83  On  the  other  hand,  bonds, 
mortgages  and  other  securities  of  a  nonresident,  kept 
within  the  state  habitually  for  investment  or  safekeep- 
ing, are  subject  to  the  inheritance  tax  of  that  state.8* 

si  Blackstone  v.  Miller,  188  U.  S.  189,  47  L.  Ed.  439,  23  Sup.  Ct. 
Eep.  277,  affirming  171  N.  Y.  682,  64  N.  E.  1118.  A  thorough  elucida- 
tion of  this  principle  will  be  found  in  Estate  of  Daly,  100  App.  Div. 
373,  91  N.  Y.  Supp.  858,  affirmed,  182  N.  Y.  524,  74  N.  E.  1116.  In 
Estate  of  Horn,  39  Misc.  Eep.  133,  78  N.  Y.  Supp.  979,  a  different 
view  of  this  question  seems  to  be  taken. 

In  Estate  of  Bentley,  31  Misc.  Rep.  656,  66  N.  Y.  Supp.  95,  it  is 
said:  "It  has  never  been  determined  that  every  debt  of  a  person  who 
does  business  as  a  banker  has  a  situs  in  this  state,  within  the  mean- 
ing of  the  transfer  tax  law.  A  deposit  made  with  a  banking  corpo- 
ration or  trust  company  or  savings  bank  in  this  state,  to  be  repaid 
on  checks  or  drafts  in  writing  presented  to  the  corporation  at  its  place 
of  business  in  this  state,  and  not  otherwise,  is  taxable  here,  as  was 
said  Estate  of  Heudayer,  150  N.  Y.  37,  55  Am.  St.  Eep.  642,  34  L.  B. 
A.  235,  44  N.  E.  718,  'because  the  owner  must  come  here  to  get  it.' 
The  test  prescribed  in  the  case  cited  excludes  from  taxability  a  debt 
du«  to  a  nonresident  decedent  by  a  nonresident  debtor." 

32  Dodge  County  v.  Burns,  89  Neb.  534,  35  L.  E.  A.,  N.  S.,  877,  131 
N.  W.  922. 

83  Estate  of  Rogers,  149  Mich.  305,  119  Am.  St.  Rep.  677,  11  L.  E.  A., 
N.  S.,  1134,  112  N.  W.  931. 

8*  Estate  of  Eomaine,  127  N.  Y.  80,  12  L.  B.  A.  401,  27  N.  E.  759; 
Matter  of  Clark,  2  Con.  183,  9  N.  Y.  Supp.  444.  In  Matter  of  Tulane, 


24:0  INHERITANCE  TAXATION. 

A  leading  decision  on  this  point  is  the  Romaine 
case,35  decided  by  the  New  York  court  of  appeals.  The 
Pennsylvania  court,36  in  holding  that  stocks,  bonds  and 
mortgages  of  a  nonresident,  which  had  always  been 
held  by  an  agent  in  Pennsylvania  for  investment  and 
reinvestment,  were  subject  to  the  Pennsylvania  tax, 
quoted  with  approval  this  language  from  the  Romaine 
case:  " Where,  however,  the  money  of  a  nonresident  is 
invested  in  this  state  as  it  was  by  Mr.  Romaine  in 
•the  bond  and  mortgage  in  question,  and  in  deposits 
made  by  him  in  savings  banks,  or  where  the  property 
of  a  nonresident  is  habitually  kept  even  for  safety 'in 
this  state,  we  think  the  statute  applies,  both  in  letter 
and  spirit.  Such  property  is  within  the  state  in  every 
reasonable  sense,  receives  the  protection  of  its  laws  and 
has  every  advantage  from  government,  for  the  support 
of  which  taxes  are  laid,  that  it  would  have  if  it  be- 
longed to  a  resident." 

That  promissory  notes  have  an  independent  situs  of 
their  own,  and  their  transfer  is  properly  taxed  where 
they  are  located,  is  well  illustrated  in  a  recent  New 
York  case.  A  resident  of  Connecticut  died,  owning 
promissory  notes  which  then  were,  and  for  some  time 
prior  thereto  had  been,  in  a  safe  deposit  box  in  the 
city  of  New  York.  Some  of  the  notes  were  made  by 
residents  and  some  by  nonresidents  of  New  York,  and 
all  of  them  were  secured  by  property  outside  of  that 
state.  It  was  decided  that  they  were  subject  to  the 
transfer  tax  act  of  New  York.37  In  the  course  of  its 
opinion,  the  court  quotes  approvingly  the  following 

51  Hun,  213,  4  N.  Y.  Supp.  36,  the  court  seems  to  have  departed  from 
this  doctrine,  by  holding  that  property  deposited  with  a  safe  deposit 
company  in  New  York  by  a  resident  of  another  state  is  not  liable  to 
the  New  York  transfer  tax  upon  his  dying  intestate  at  his  domicile. 

»«  See  next  preceding  citation. 

s«  Estate  of  Lewis,  203  Pa.  211,  52  Atl.  205. 

«  Estate  of  Tiffany,  143  App.  Div.  327,  128  N.  Y.  Supp.  106,  affirmed, 
202  N.  Y.  550,  95  N.  E.  1140. 


SITUS   OP   PROPERTY — NONRESIDENCE   OP   PARTIES.          241 

language  of  Justice  Vann:"  "The  law  clearly  distin- 
guishes 'written  instruments  themselves'  from  the 
'rights  or  interests  to  which  they  relate,'  and  makes 
either  taxable.  There  is  obvious  propriety  in  subject- 
ing the  instrument  of  transfer  to  a  transfer  tax  when 
it  is  left  in  this  state  for  safekeeping.  It  is  subject  to 
the  jurisdiction  of  our  laws,  and  hence  is  within  the 
intent  of  the  transfer  tax  act.  When  the  design  of  the 
legislature  is  to  tax  the  transfer  of  everything  that  it 
has  power  to  tax,  there  is  no  inconsistency  in  tax- 
ing in  one  form,  if  another  is  not  available.  Indeed, 
perfect  consistency  is  not  always  practicable  in  a 
scheme  of  taxation  that  is  intended  to  let  nothing 
escape  that  can  be  owned  or  transferred.  Thus  the 
legislature  intended,  as  I  think,  to  repeal  the  maxim, 
'Mobilia  personam  sequuntur,'  so  far  as  it  was  an 
obstacle  and  to  leave  it  unchanged  so  far  as  it  was  an 
aid  to  the  imposition  of  a  transfer  tax  upon  all  prop- 
erty in  any  respect  subject  to  the  laws  of  this  state." 
Continuing  the  court  quotes  with  approval  this  lan- 
guage from  Justice  Holmes : 89  "  We  perceive  no  better 
reason  for  denying  the  right  of  New  York  to  impose 
a  succession  tax  on  debts  owed  by  its  citizens  than 
upon  tangible  chattels  found  within  the  state  at  the 
time  of  the  death.  The  maxim,  'Mobilia  sequuntur 
personam,'  has  no  more  truth  in  the  one  case  than  in 
the  other.  When  logic  and  the  policy  of  a  state  con- 
flict with  a  fiction  due  to  historical  tradition,  the  fiction 
must  give  way.  Bonds  and  negotiable  instruments  are 
more  than  merely  evidences  of  debt.  The  debt  is  in- 
separable from  the  paper  which  declares  and  consti- 
tutes it." 

ss  Matter  of  Whiting,  150  N.  Y.  27,  55  Am.  St.  Rep.  640,  34  L.  E. 
A.  232,  44  N.  E.  715. 

3»  Blackstone  v.  Miller,  188  U.  S.  189,  47  L.  Ed.  439,  23  Sup.  Ct. 
Eep.  277. 

10 


243  INHERITANCE  TAXATION. 

American  securities  which  pass  partly  under  a  will 
executed  abroad  by  an  alien,  and  partly  under  the  in- 
testate laws  of  Spain,  are  not  subject  to  the  transfer 
tax  imposed  by  the  war  revenue  act  of  1898,  upon 
personal  property  that  passes  "either  by  will  or  by  the 
intestate  laws  of  any  state  or  territory,"  for  the  ex- 
pression "passing  by  will"  is  limited  by  the  subsequent 
expression  "or  by  the  intestate  laws  of  any  state  or 
territory,"  as  appears  from  the  provision  of  section 
30  for  the  payment  of  the  tax  to  the  collector  of  the 
district  of  which  the  decedent  was  a  resident.40 

§  180.  Notes  Secured  by  Mortgage  on  Real  Estate. 
Notes  in  the  possession  of  the  owner  at  his  domicile 
in  one  state,  and  secured  by  mortgage  on  real  estate 
situated  in  another  state,  are,  upon  the  owner's  death, 
subject  to  the  inheritance  tax  of  the  latter  state;  and 
it  seems  to  be  immaterial  whether  the  mortgage  is 
regarded  as  conveying  the  legal  title  or  as  merely  cre- 
ating a  lien,  or  whether  the  interest  mortgaged  is  a 
legal  or  an  equitable  interest.  The  fact  that  the  laws 
of  the  state  where  the  real  property  is  situated  must 
be  invoked  for  the  preservation  and  enforcement  of 
rights  under  the  mortgage  is  an  important  considera- 
tion leading  to  this  result.  Aside  from  that  circum- 
stance, however,  it  is  to  be  noted  that  the  debt,  which 
is  the  obligation  of  the  debtor  to  pay,  and  the  real 
estate,  which  is  the  security  for  the  payment  of  the 
debt,  are  individual  parts  of  a  single  valuable  prop- 
erty in  the  mortgagee,  which  may  be  made  available 
in  different  ways.  The  debt  belongs  with  the  mort- 
gage, and  it  must  coexist  to  give  the  mortgage  valid- 
ity. For  that  purpose  it  has  a  situs  within  the  juris- 
diction of  the  state  where  the  real  estate  lies.41 

*o  Eidman  v.  Martinez,  184  U.  8.  578,  46  L.  Ed.  697,  22  Sup.  Ct. 
Rep.  515. 

*i  Kinney  v.  Stevens,  207  Mass.  368,  Ann.  Gas.  1912A,  902,  35  L. 
B.  A.,  N.  S.,  784,  93  N.  E.  586;  Estate  of  Rogers,  149  Mich.  305,  119 


SITUS   OP   PROPERTY — NONRESIDENCB   OP   PARTIES.          243 

On  the  other  hand,  bonds  and  notes  held  by  a  resi- 
dent of  one  state  and  secured  by  mortgage  on  real 
property  in  another  state  have  been  held  taxable  in  the 
former  state — the  domicile  of  the  owner — on  the  theory 
that  the  transmission  on  the  death  of  the  owner  is 
governed  by  the  law  of  his  domicile.42  Where  the 
decedent  was  domiciled  in  Massachusetts,  and  the 
bonds  were  in  the  hands  of  his  agent  in  New  York, 
while  the  mortgaged  land  was  situated  in  New  Hamp- 
shire, the  bonds  were  held  liable  to  the  Massachusetts 
collateral  inheritance  tax.43 

The  tax  upon  the  succession  to  real  estate  in  Massa- 
chusetts, belonging  to  a  decedent  in  another  state  and 
subject  to  a  mortgage,  is  taxable  only  upon  the  value 
of  the  property  above  the  mortgage.  This  seems  to 
be  upon  the  ground  that  what  passes  at  the  death  of 
the  mortgagor  is  only  the  value  of  his  interest,  which 
is  the  value  of  the  real  estate  less  the  amount  of  the 
debt  that  is  a  charge  upon  it.  This  is  equivalent  to 
affirming  that,  upon  the  death  of  the  mortgagee,  his 
interest  in  the  real  estate,  to  the  amount  of  his  debt, 
would  pass  in  succession  to  his  representatives.44 

Am.  St.  Bep.  677,  11  L.  R.  A.,  N.  S.,  1134,  112  N.  W.  931.  In  Estate 
of  Merriman,  147  Mich.  630,  118  Am.  St.  Rep.  561,  11  Ann.  Cas.  119, 
9  L.  R.  A.,  N.  S.,  1104,  111  N.  W.  196,  it  is  adjudged  that  a  debt  se- 
cured by  mortgage  on  real  estate  situated  in  Michigan  ia  subject  to 
the  succession  tax  of  that  state,  although  the  mortgagee  was  a  resident 
of  New  Jersey  and  up  to  the  time  of  his  death  had  the  note  and  mort- 
gage in  his  possession  there. 

Bonds  of  an  individual  secured  by  mortgage  on  land  in  New  York, 
but  kept  by  the  nonresident  owner  in  good  faith  at  his  domicile  out- 
side the  state  have  been  thought  not  subject  to  the  New  Y^rk  transfer 
tax:  Estate  of  Preston,  37  Misc.  Rep.  236,  75  N.  Y.  Supp.  251. 

<2  Frothingham  v.  Shaw,  175  Mass.  59,  78  Am.  St.  Rep.  475,  55  N. 
E.  623;  Estate  of  Corning,  3  Misc.  Rep.  160,  23  N.  Y.  Supp.  285;  Es- 
tate of  Gibbs,  60  Misc.  Rep.  645,  113  N.  Y.  Supp.  939. 

«  Frothingham  v.  Shaw,  175  Mass.  59,  78  Am.  St.  Rep.  475,  55  N. 
E.  623. 

"  McCurdy  v.  McCurdy,  197  Mass.  248,  14  Ann.  Cas.  859,  16  L.  R. 
A.,  N.  S.,  329,  83  N.  E.  881;  Kinney  v.  Stevens,  207  Mass.  368,  Ann. 
Cas.  1912A,  902,  35  L.  R.  A.,  N.  S.,  784,  93  N.  E.  586. 


244  INHERITANCE  TAXATION. 

The  inheritance  tax  may  be  levied  in  Michigan  upon 
notes  and  mortgages  of,  and  contracts  relating  to,  land 
in  that  state,  owned  by  a  resident  of  another  state,  but 
which  notes  and  mortgages  have  always  been  kept  in 
Michigan  for  the  purpose  of  collection  and  reinvest- 
ment, though  they  may  have  been  temporarily  taken 
to  New  York." 

The  Vermont  statute  taxes  the  proceeds  of  notes 
against  nonresidents,  secured  by  a  mortgage  on  real 
property  without  the  state,  held  within  the  state  by  an 
intestate  at  the  time  of  his  death,  and  collected  by 
the  resident  administrator  beyond  the  state,  no  tax 
having  been  paid  on  account  thereof  in  any  other 
state.48 

§  181.  Corporate  Bonds. — The  bonds  of  a  domestic 
corporation,  actually  kept  within  the  state  in  safe  de- 
posit or  otherwise,  at  the  time  of  the  death  of  the  non- 
resident owner,  are  there  subject  to  the  inheritance 
tax.  This  much  is  definitely  settled  by  the  decisions.47 
But  it  is  not  so  clear  that  bonds  of  a  foreign  corpora- 
tion, owned  by  a  nonresident,  but  kept  within  the  state, 
can  there  be  subjected  to  the  tax.  Some  of  the  New 
York  decisions  are  to  the  effect  that  such  bonds,  as 
well  as  the  bonds  of  domestic  corporations,  are  liable 
to  the  inheritance  tax ; 48  and  so,  possibly,  are  the  de- 
cisions of  some  other  states.48  But  other  decisions, 

«  Estate  of  Stanton,  142  Mich.  491,  105  N.  W.  1122. 

««  Estate  of  Howard,  80  Vt.  489,  68  Atl.  513. 

47  People  v.  Griffith,  245  111.  532,  92  N.  E.  313;  Estate  of  Burden, 
47  Misc.  Bep.  329,  95  N.  Y.  Supp.  972;  Estate  of  Pullman,  46  App. 
Div.  574,  62  N.  Y.  Supp.  395.  In  the  last  case  cited  it  is  held  that 
stocks  and  bonds  of  a  New  York  corporation,  pledged  as  security  for 
debts  to  New  York  creditors,  are  not  taxable  under  the  transfer  tax 
law  before  the  debts  are  paid. 

«  Estate  of  Whiting,  150  N.  Y.  27,  55  Am.  St.  Bep.  640,  34  L.  B. 
A.  232,  44  N.  E.  715;  Estate  of  Morgan,  150  N.  Y.  35,  44  N.  E.  1126. 

«  State  v.  Dalrymple,  70  Md.  294,  3  L.  B.  A.  372,  17  Atl.  82; 
Callahan  v.  Wo9dbridge,  171  Mass.  595,  51  N.  E.  176;  Estate  of  Lewis, 


SITUS   OP   PROPERTY — NONRESIDENCE   OP   PARTIES.          245 

both  of  the  courts  of  New  York  and  of  other  states, 
take  a  contrary  view.80  The  bonds  of  a  local  corpora- 

203  Pa.  211,  52  Atl.  205.  In  these  cases  bonds  owned  by  nonresidents 
were  held  taxable,  but  it  does  not  clearly  appear  that  the  courts  in- 
tended to  apply  the  rule  to  the  bonds  of  foreign  as  well  as  domestic 
corporations. 

BO  People  v.  Griffith,  245  111.  532,  92  N.  E.  313;  Estate  of  Gibbes, 
84  App.  Div.  510,  83  N.  Y.  Supp.  53,  affirmed,  176  N.  Y.  565,  68  N.  E. 
1117.  See,  also,  Estate  of  Hillman,  116  App.  Div.  186,  101  N.  Y. 
Supp.  640. 

In  Estate  of  Schermerhorn,  50  Misc.  Eep.  233,  100  N.  Y.  Supp.  430, 
where  it  is  decided  that  the  United  States  bonds  belonging  to  a  non- 
resident, but  physically  within  the  state  at  the  time  of  his  death,  are 
not  property  within  the  transfer  law  in  October,  1891,  the  court  said: 
"The  recent  decision  in  Estate  of  Gibbes,  84  App.  Div.  510,  83  N. 
Y.  Supp.  53,  affirmed,  176  N.  Y.  565,  68  N.  E.  1117,  was  upon  the 
same  statutes  which  are  applicable  to  this  case,  and  the  principles 
there  applied  must  control  here.  It  was  there  determined  that  a  bond 
of  a  corporation  created  by  the  laws  of  a  sister  state  was  the  mere 
evidence  of  a  contract  obligation  or  right  of  action,  and  was  not,  prior 
to  the  enactment  of  section  4,  chapter  677,  page  1486  of  the  Laws  of 
1892,  known  as  the  statutory  construction  law,  and  within  the  meaning 
of  the  transfer  tax  law,  'property,'  the  presence  of  which  in  this 
state  would  render  transfers  from  its  deceased  nonresident  owner  tax- 
able. The  statutory  construction  law,  in  defining  personal  property 
as  including  'all  written  instruments  themselves,  as  distinguished  from 
the  rights  and  interests  to  which  they  relate,'  was  not  merely  declaratory 
of  the  law,  but  effected  a  change  which  was  the  foundation  of  a  decision 
in  Estate  of  Whiting,  150  N.  Y.  27,  55  Am.  St.  Eep.  640,  34  L,  R.  A. 
232,  44  N.  E.  715;  Estate  of  Morgan,  150  N.  Y.  35,  44  N.  E.  1126, 
under  which  the  bonds  of  foreign  corporations  actually  within  the  state 
belonging  to  nonresident  decedents  have  since  been  included  in  trans- 
fer tax  appraisals.  Applying  this  rule,  I  must  determine  that  United 
States  bonds  were  not  in  October,  1891,  property  within  the  meaning 
of  the  tax  law,  but  were,  under  the  law  then  existing  and  applicable, 
obligations  for  the  payment  of  money,  or  evidences  of  a  claim  against 
the  United  States.  They  can  be  taxed  only  according  to  the  rules  con- 
trolling the  taxation  of  rights  of  action  belonging  to  nonresident  de- 
cedents, and  the  situs  of  such  a  right  of  action  is,  for  purposes  of 
taxation,  the  domicile  of  the  debtor.  In  the  case  of  the  bond  of  a 
corporation  that  situs  has  been  held  to  be  the  place  under  the  laws 
of  which  the  debtor  corporation  was  created,  and  by  which  laws  the 
validity  of  the  debt  would  be  determined  and  its  payment  enforced: 
Estate  of  Clinch,  180  N.  Y.  300,  73  N.  E.  35;  Estate  of  Daly,  100 
App.  Div.  373,  91  N.  Y.  Supp.  858,  affirmed,  182  N.  Y.  524,  74  N.  E. 
1116.  'Power  over  the  person  of  the  debtor  confers  jurisdiction*  to 


246  INHERITANCE  TAXATION. 

tion,  owned  by  a  nonresident  and  in  his  possession  at 
the  time  of  his  death  at  the  place  of  his  domicile,  have 
been  held  not  "property  within  the  state"  of  the  cor- 
poration, and  hence  not  there  subject  to  the  inheritance 
tax.61 

§  182.  Stock  in  Domestic  Corporations. — While  the 
law  under  some  of  the  earlier  statutes  and  decisions 
may  incline  to  the  contrary,52  it  is  now  generally  con- 
ceded that  stock  in  a  domestic  corporation,  whether 
passing  by  will  or  descent,  is  subject  to  the  inheritance 
tax  of  the  state,  notwithstanding  the  owner  is  a  non- 
resident. Although  shares  of  stock  in  a  domestic  cor- 
poration are  owned  by  a  nonresident,  they  represent  an 
interest  in  property  which  is  within  the  jurisdiction  of 
the  state  for  the  purpose  of  taxation,  upon  its  transfer 
by  operation  of  law  or  act  of  the  owner.  The  assess- 
ment is  computed  upon  the  value  of  the  interest  of  the 
owner,  at  the  time  of  his  decease,  in  the  whole  of  the 
corporate  property,  as  evidenced  by  the  number  of 
shares  he  held.58 

impose  the  tax  upon  the  debt:  Blackstone  v.  Miller,  188  U.  S.  189, 
47  L.  Ed.  439,  23  Sup.  Ct.  Eep.  2,77.  It  is  quite  clear  that  the  state  of 
New  York  has  no  power  over  the  United  States,  and  that  the  obliga- 
tions of  the  United  States  were  not  created  by  the  laws  of  the  state, 
nor  can  the  validity  of  those  debts  be  determined  by  or  their  pay- 
ment enforced  by  our  courts.  Without  determining,  therefore,  that  the 
United  States  is  for  all  purposes  a  corporation  foreign  to  this  state, 
it  must  follow  that  its  debts,  treated  apart  from  the  evidences  hereof, 
are  taxable  in  this  state  only  when  the  debt  of  the  foreign  corporation 
is  taxable." 

•i  Estate  of  Bronson,  150  N.  Y.  1,  55  Am.  St.  Rep.  632,  34  L.  E. 
A.  238,  44  N.  E.  707. 

"  Estate  of  Enston,  113  N.  Y.  174,  3  L.  R.  A.  464,  21  N.  E.  87; 
Matter  of  Hall,  55  Hun,  608,  8  N.  Y.  Supp.  556;  Kintzing  v.  Hutchin- 
son,  Fed.  Gas.  No.  7834. 

68  People  v.  Griffith,  245  111.  532,  92  N.  E.  313;  Estate  of  Palmer, 
183  N.  Y.  238,  76  N.  E.  16;  Estate  of  Leavitt,  4  N.  Y.  Supp.  179; 
Estate  of  Pullman,  46  App.  Div.  574,  62  N.  Y.  Supp.  395;  Estate  of 
Alexander  (Pa.),  3  Clark,  87. 


SITUS   OF   PROPERTY — NONRESIDENCE   OF   PARTIES.          247 

The  authorities  seem  to  be  at  variance  on  this  ques- 
tion, when  the  stock  certificates  are  in  the  possession  of 
the  nonresident  owner  without  the  state  at  the  time 
of  his  death.  The  New  York  courts  have  come  to  the 
conclusion  that  shares  of  stock  in  corporations  incor- 
porated under  the  laws  of  that  state,  which  are  held 
by,  and  represented  by  certificates  in  the  possession  of, 
a  nonresident  at  the  time  of  his  death  at  his  domicile 
outside  of  the  state  of  New  York,  and  which  then  pass 
to  nonresidents,  are  subject  to  taxation  under  the  trans- 
fer tax  act  of  1892.  Justice  Gray,  speaking  for  the 
court  of  appeals,  in  announcing  this  doctrine,  distin- 
guishes between  the  attitude  of  holders  of  shares  of 
capital  stock  and  holders  of  bonds,  toward  the  cor- 
poration that  issued  them.  While  the  bondholders  are 
simply  creditors,  whose  concern  with  the  corporation 
is  limited  to  the  fulfillment  of  its  particular  obligation, 
the  shareholders  are  the  persons  who  are  interested  in 
the  operation  of  the  corporate  property  and  franchises, 
and  their  shares  actually  represent  undivided  interests 
in  the  corporate  enterprise.  Each  share  represents  a 
distinct  interest  in  the  whole  of  the  corporate  property; 
it  is  property  within  the  broad  meaning  of  that  term. 
In  legal  contemplation  the  property  of  the  shareholder 
is  either  where  the  corporation  exists,  or  at  his  domi- 
cile, accordingly  as  it  is  considered  as  consisting  in  his 
contractual  rights  or  in  his  proprietary  interest  in  the 
corporation.  In  the  case  of  bonds,  they  represent  only 
a  property  in  the  debt,  and  that  follows  the  person  of 
the  creditor.  Therefore  it  cannot  be  said,  if  the  prop- 
erty represented  by  a  share  of  stock  has  its  legal  situs 
where  the  corporation  exists,  or  at  the  holder's  domi- 
cile, that  the  state  is  without  jurisdiction  for  purposes 
of  taxation.  As  personalty,  the  legal  situs  does  follow 
the  person  of  the  owner;  but  the  property  is  in  his  right 
to  share  in  the  net  produce,  and,  eventually,  in  the  net 
residuum  of  the  corporate  assets,  resulting  from  liqui- 


248  INHERITANCE  TAXATION. 

dation.  That  right,  as  a  chose  in  action,  must  neces- 
sarily follow  the  shareholder's  person;  but  that  does 
not  exclude  the  idea  that  the  property,  as  to  which 
the  right  relates  and  which  is,  in  effect,  a  distinct  in- 
terest in  the  corporate  property,  is  not  within  the  juris- 
diction of  the  state  for  the  purpose  of  assessment  upon 
its  transfer  through  the  operation  of  law  or  the  act  of 
its  owner.  The  attempt  to  tax  a  debt  of  the  corpora- 
tion to  a  nonresident  of  the  state,  as  being  property 
within  the  state,  is  one  thing,  and  the  imposition  of  a 
tax  upon  the  transfer  of  any  interest  in  or  right  to 
the  corporate  property  itself  is  another  thing.  The 
corporation  is  the  creature  of  state  laws,  and  those 
who  become  its  members,  as  shareholders,  are  subject 
to  the  operation  of  those  laws,  with  respect  to  any 
limitation  upon  their  property  rights  and  with  respect 
to  the  right  to  assess  their  property  interests  for  pur- 
poses of  taxation.6* 

Here  is  manifested  a  departure  from  the  fiction  that 
the  situs  of  personal  property  follows  the  domicile  of 
the  owner,  and  a  reliance  upon  the  true  or  actual  situs 
of  the  property.  If  it  should  seem  that  the  real  situs 
of  stock  is  the  place  where  the  certificate  is  located,  it 
is  to  be  remembered  that  the  certificate  is  not  the  prop- 

6*  Matter  of  Bronson,  150  N.  Y.  1,  55  Am.  St.  Rep.  632,  34  L.  B.  A. 
238,  44  N.  E.  707.  See,  too,  Estate  of  Palmer,  183  N.  Y.  238,  76  N. 
E.  16;  Estate  of  Bushnell,  73  App.  Div.  325,  77  N.  Y.  Supp.  4,  affirmed, 
172  N.  Y.  649,  65  N.  E.  1115. 

In  Estate  of  Newcomb,  71  App.  Div.  606,  76  N.  Y.  Supp.  222,  af- 
firmed, 172  N.  Y.  608,  64  N.  E.  1123,  the  estate  of  a  nonresident 
decedent  in  corporations  organized  under  the  New  York  statutes, 
represented  by  certificates  of  stock  standing  on  the  corporation 
books  in  the  names  of  the  stockholders  who  purchased  the  stock 
for  the  decedent,  whicE  have  been  signed  by  the  brokers  in  blank 
and  delivered  to  the  decedent,  is  held  subject  to  the  transfer  tax. 

It  has  been  affirmed  that  when  a  national  bank  does  business  in  a 
state,  the  estate  of  a  nonresident  stockholder  is  subject  to  the  inherit- 
ance tax,  notwithstanding  the  certificate  of  stock  is  without  the  state: 
Estate  of  Gushing,  40  Misc.  Eep.  505,  82  N.  Y.  Bupp.  795. 


SITUS   OF  PROPERTY — NONRESIDENCE   OF   PARTIES.          249 

erty,  but  merely  the  evidence  of  the  intangible  right 
located  with  the  corporation  itself.  The  nonresident 
shareholder  has  invested  his  funds  in  a  state  wherein 
the  corporation  is  situated,  and  clearly  should  submit 
to  the  burdens  imposed  by  the  laws  of  that  state  along 
with  its  inhabitants;  he  can  claim  no  exemption  for 
his  investment  that  they  cannot  claim.  In  a  sense  the 
corporation  is  a  citizen  of  the  state,  having  an  abiding 
place  there  comparable  to  the  domicile  of  a  natural 
person;  and  its  shares  of  stock  are  property  there,  re- 
gardless of  the  residence  of  the  shareholder  or  the  loca- 
tion of  the  certificates.5411 

The  New  Jersey  courts  do  not  seem  to  have  at  all 
times  entertained  the  same  opinion  on  this  question. 
On  one  occasion  the  idea  prevailed  that  the  shares  of 
stock  in  a  corporation  organized  under  the  laws  of  that 
state  are,  for  purposes  of  inheritance  taxation,  prop- 
erty within  the  state  without  regard  to  the  place  of 
residence  of  the  stockholder,  or  the  place  of  deposit  of 
the  certificates,  or  the  location  of  the  property  of  the 
company,  or  the  place  where  its  business  is  carried  on. 
The  following  is  an  extract  from  the  opinion  of  the 
court : 

"In  this  country,  where  the  general  doctrine  of  the 
state  courts  is  that  the  situs  of  property  governs  its 
liability  to  succession  taxes,  the  weight  of  authority  is 
that  stock  in  a  corporation  is  subject  to  the  imposition 
of  succession  taxes  by  the  state  that  created  the  cor- 
poration, and  that  in  this  regard  the  place  of  residence 
of  the  deceased  stockholder  is  immaterial.  In  the  case 
of  Greves  v.  Shaw,55  Knowlton,  J.,  said:  *  There  can  be 
no  doubt  that  stock  in  a  corporation  organized  under 
the  laws  of  this  commonwealth  is  property  within  the 
jurisdiction  of  the  commonwealth.  Such  a  corporation, 

"»  Greves  v.  Shaw,  173  Mass.  205,  53  N.  E.  372;  Neilson  v.  Bussell, 
76  N.  J.  L.  27,  69  Atl.  476. 
«»  Greves  v.  Shaw,  173  Mass.  205,  53  N.  E.  372. 


250  INHERITANCE  TAXATION. 

being  in  a  sense  a  citizen  of  this  state,  and  having  an 
abiding  place  here  akin  to  the  domicile  of  a  natural 
person,  is  subject  to  the  jurisdiction  of  the  common- 
wealth, and  is  in  fact  within  the  commonwealth.  The 
stockholders  are  the  proprietors  of  the  corporation, 
which  is  itself  the  proprietor  of  the  property  owned 
and  used  for  the  ultimate  benefit  of  the  stockholders.' 
In  the  later  case  of  Kingsbury  v.  Chapin,86  Knowlton, 
Chief  Justice,  speaking  of  a  succession  tax  upon  shares 
in  a  railroad  corporation  organized  under  the  same 
name  by  the  laws  of  that  state  and  of  another  state, 
said:  'In  a  sense  such  a  railroad  company  is  a  domestic 
corporation  in  each  of  the  states  where  it  is  incor- 
porated. We  think  that  stock  in  such  a  corporation 
is  "  property  within  the  jurisdiction  of  this  common- 
wealth ' '  under  the  language  of  our  statute  authorizing, 
taxation  of  collateral  inheritances.  We  think  it  is 
property  within  the  jurisdiction  of  the  commonwealth 
in  a  constitutional  sense  such  as  to  enable  the  state 
to  subject  it  to  taxation  as  against  a  nonresident 
owner.'  " 

Continuing,  the  court  then  added:  "In  a  somewhat 
more  precise  form  our  conclusion  is  that  stock  in  a 
New  Jersey  corporation,  i.  e.,  the  proprietary  right  that 
a  stockholder  has  in  a  corporation  of  this  state,  relating 
as  such  proprietary  right  does  to  an  anomalous  species 
of  intangible  property  that  owes  its  existence  solely 
to  the  laws  of  this  state,  is  itself  property  within  this 
state  in  the  sense  that  it  has  an  inherent  and  abiding 
situs  here  for  all  matters  appertaining  to  sovereignty, 
among  which  is  the  levying  of  an  impost  upon  the 
devolution  of  such  property  upon  the  death  of  its 
owner;  and,  furthermore,  that  such  intangible  pro- 
prietary right,  although  it  is  personal  property  as  re- 
gards the  acts  of  its  owner,  is  from  its  nature  and 

e«  Kingsburj  v.  Chapin,  196  Mass.  533,  13  Ann.  Cas.  738,  82  N.  E. 
700. 


.SITUS   OF   PROPERTY — NONRESIDENCE   OP   PARTIES.          251 

because  of  its  inherent  situs  unaffected  as  regards  the 
acts  of  the  sovereign  by  the  circumstance  that  the  dom- 
icile of  its  former  owner  was  elsewhere  than  in  this 
state.  In  fine,  we  think  that  the  sovereign  power  to 
which  a  corporation  owes  its  existence  can  never  be 
wholly  detached  from  it,  and  is  not  estranged  from 
its  creature  by  the  circumstances  that  the  owners  of 
shares  in  the  property  thus  created  reside  in  one  place 
rather  than  in  another.  The  metaphor  that  pictures 
the  state  as  giving  birth  to  a  corporation  is  a  figure 
more  bold  than  accurate,  for  (to  carry  out  the  meta- 
phor) the  natal  cord  between  the  two  is  never  com- 
pletely severed.  Acts  of  ownership  that  do  not  trench 
upon  this  vital  union  do  not  call  for  the  recognition 
of  its  existence,  but  acts  of  sovereignty  that  are  based 
upon  its  existence  demand  its  recognition.  In  effect 
the  anomalous  species  of  incorporeal  personal  prop- 
erty we  are  considering  has  a  dual  situs  accordingly 
as  it  is  regarded  from  the  standpoint  of  ownership  or 
from  that  of  sovereignty.  As  to  the  former  the  situs 
changes  with  the  domicile  of  the  owner,  but  as  to  the 
latter  the  situs  is  always  within  the  dominion  of  the 
sovereign.  In  this  latter  sense,  and  for  the  purposes 
of  the  legislation  under  review,  the  situs  of  every  share 
of  stock  in  every  company  incorporated  by  this  state, 
and  coming  within  the  purview  of  the  act,  is  within 
the  state  of  New  Jersey.  It  may  be  superfluous  to  add 
that  the  whereabouts  of  the  certificates  of  stock  is 
immaterial  upon  the  question  of  the  legal  situs  of  the 
property  represented  by  them.  Such  certificates  being 
mere  evidences  of  ownership,  their  place  of  deposit  no 
more  determines  the  situs  of  the  personal  property  of 
which  they  are  a  muniment  of  title  than  the  place 
where  a  deed  of  conveyance  is  kept  would  determine 
the  situs  of  the  real  property  described  in  it. ' '  " 

«T  Neilson  v.  Russell,  76  N.  J.  L.  27,  69  Atl.  476;  Estate  of  Delano, 
74  N.  J.  Eq.  365,  69  Atl.  482. 


252  INHERITANCE  TAXATION. 

Subsequently,  however,  the  New  Jersey  court  has 
decided  that  stock  in  a  New  Jersey  corporation  be- 
longing to  a  testator  domiciled  in  England  is  not  sub- 
ject to  the  inheritance  tax  imposed  by  the  act  of  1894 ; B8 
and  that  stock  in  a  New  Jersey  corporation  belonging 
to  a  testator 'domiciled  in  Monaco  is  not  subject  to  the 
inheritance  tax  imposed  by  such  act  of  1894,  which 
provides  that  upon  all  property  within  the  state  trans- 
ferred by  inheritance,  bequest  or  devise,  an  inheritance 
tax  may  be  imposed,  since  the  statute  applies  to  the 
general  succession  of  the  whole  estate,  and  not  to  the 
particular  succession  to  a  special  portion  of  the  estate." 

But  under  the  act  of  1906,  which  contains  a  pro- 
vision that  a  tax  may  be  imposed  ''when  the  transfer 
is  by  will  or  intestate  law  of  property  within  the  state, 
and  the  decedent  was  a  nonresident  of  the  state  at  the 
time  of  his  death,"  it  has  recently  been  decided  that 
shares  of  stock  in  a  New  Jersey  corporation,  belonging 
to  a  resident  of  Rhode  Island  and  passing  by  his  will, 
are  subject  to  the  inheritance  tax.60 

The  New  Hampshire  court  puts  forth  these  reasons 
for  holding  the  shares  in  a  domestic  corporation,  owned 
by  a  nonresident  decedent,  subject  to  inheritance  taxa- 
tion: ''The  court  in  Massachusetts,81  in  construing  a 
statute  containing  provisions  substantially  the  same 
as  our  own,  has  so  held;  and  a  like  holding  has  been 
made  by  the  court  of  appeals  in  New  York.62  The  line 
of  argument  in  these  decisions  is  that  the  probate  court 

68  Neilson  v.  Russell,  76  N.  J.  L.  655,  131  Am.  St.  Rep.  673,  19  L.  E. 
A.,  N.  S.,  887,  71  Atl.  286. 

6»  Astor  v.  State,  75  N.  J.  Eq.  303,  72  Atl.  78. 

«o  Dixon  v.  Russell,  78  N.  J.  L,.  296,  73  Atl.  51. 

«i  Greves  v.  Shaw,  173  Mass.  205,  53  N.  E.  372;  Moody  v.  Shaw,  173 
Mass.  375,  53  N.  E.  891;  Callahan  v.  Woodbridge,  171  Mass.  595,  51 
N.  E.  176;  Mass.  Laws  1891,  p.  1028,  c.  425. 

«  In  re  Bronson's  Estate,  150  N.  Y.  1,  55  Am.  St.  Rep.  632,  34  L. 
R.  A.  238,  44  N.  E.  707;  In  re  Palmer's  Estate,  183  N.  Y.  238,  76  N. 
E.  16. 


SITUS   OF   PROPERTY — NONRESIDENCE   OP   PARTIES.          253 

in  the  state  where  the  property  of  the  nonresident 
decedent  is  situated  has  jurisdiction  of  the  settlement 
of  the  estate  there  located  that  it  may  collect  the  assets 
within  the  state,  pay  the  debts,  make  final  distribution 
of  the  property,  pay  it  over  according  to  the  will,  or 
in  its  discretion  cause  it  to  be  transmitted  to  the  execu- 
tor or  administrator,  if  any,  in  any  state  or  country 
where  the  deceased  has  his  domicile,  for  final  distribu- 
tion; that  the  statutes  imposing  succession  taxes  con- 
template that  property  of  nonresident  decedents  will 
be  administered  by  an  executor  or  administrator  ap- 
pointed in  the  state  where  it  is  located;  and  that  the 
right  and  title  of  a  foreign  executor  or  administrator 
are  subject  to  the  prior  right  of  the  state  to  have  the 
property  so  administered  as  to  yield  the  tax. ' ' C3 

The  New  Hampshire  decision,64  and  also  the  earlier 
New  Jersey  decision,65  have  been  cited  approvingly  by 
the  Nebraska  court.66  The  Massachusetts,  New  York, 
and  earlier  New  Jersey  cases  have  also  been  approved 
by  the  Iowa  court,  holding  that  while  negotiable  instru- 
ments, certificates  of  deposit,  and  other  evidences  of 
debt  held  by  a  nonresident  of  the  state  are  not  sub- 
ject to  the  collateral  inheritance  tax,  the  nonresident 
owner  of  shares  of  stock  in  a  domestic  corporation  has 
an  interest  in  the  property  of  the  corporation  which  is 
subject  to  the  tax.67 

Under  the  Pennsylvania  statute  of  1887,  the  interest 
of  a  nonresident  deceased  member  of  a  limited  part- 
nership association  is  liable  to  the  collateral  inherit- 
ance tax,  where  the  real  and  personal  property  of  the 
association  is  situated  within  the  state.68 

«3  Gardiner  v.  Carter,  74  N.  H.  507,  69  Atl.  939. 
6*  Gardiner  v.  Carter,  74  N.  H.  507,  &9  Atl.  939. 
«»  Neilson  v.  Russell,  76  N.  J.  L.  27,  69  Atl.  476. 
««  In  re  Douglas  County,  84  Neb.  506,  121  N.  W.  593. 
«T  Estate  of  Culver,  145  Iowa,  1,  123  N.  W.  743. 
«s  Estate  of  Small,  151  Pa.   1,  25  Atl.  23. 


254  INHERITANCE  TAXATION. 

§  183.  Stock  in  Corporation  Organized  in  Two 
States. — A  legatee  of  shares  of  stock  in  a  railroad  cor- 
poration having  a  charter  from  both  the  state  of  New 
York  and  the  state  of  Massachusetts  may  be  required 
to  pay  the  inheritance  tax  imposed  by  the  statutes  of 
Massachusetts,  as  a  condition  to  his  succession  to  stock 
issued  under  the  charter  of  the  corporation  from  that 
state.69  And  stock  of  a  railroad  corporation  organized, 
doing  business,  and  owning  property  in  Massachusetts 
and  in  neighboring  states,  but  having  only  a  single 
issue  of  stock,  is  ''property  within  the  jurisdiction  of 
the  commonwealth"  of  Massachusetts  under  the  stat- 
utes of  that  state  authorizing  taxation  of  collateral 
inheritances,  so  as  to  enable  the  state  to  subject  it  to 
taxation  as  against  a  nonresident  owner.  For  pur- 
poses of  this  taxation,  the  stock  should  be  valued  .on 
the  basis  of  representing  only  that  portion  of  the  prop- 
erty of  the  corporation  situated  within  the  state.70 
The  Massachusetts  court  in  this  case  approves  the  de- 
cision of  the  New  York  court  in  Matter  of  Cooley.71 
That  case  presented  the  question  whether  stock  of  a 
nonresident  testator  in  the  Boston  and  Albany  Bail- 
road  Company  should  be  taxed  under  the  inheritance 
law  of  New  York  at  its  value,  treating  the  stock  as 
representing  all  the  property  of  the  doubly  incorpo- 
rated New  York  and  Massachusetts  corporation,  or  at 
a  less  value,  treating  it  as  representing  only  that  por- 
tion of  the  property  which  belonged  in  the  state  of 
New  York.  It  was  held  that  the  payment  should  be 
on  the  latter  theory.  The  court  said: 

"The  authorities  are  asserting  jurisdiction  of  and 
assessing  his  stock  only  because  it  is  held  in  the  New 

• 

«»  Moody  v.  Shaw,  173  Mass.  375,  53  N.  E.  891. 

TO  Kingsbury  v.  Chapin,  196  Mass.  533,  13  Ann.  Gas.  738,  82  N.  E. 
700. 

TI  Matter  of  Cooley,  186  N.  Y.  220,  10  L.  B.  A.,  N.  S.,  1010,  78  N. 
E.  939,  distinguishing  Estate  of  Palmer,  183  N.  Y.  238,  76  N.  E.  16. 


SITUS   OP   PROPERTY — NONRESIDENCE   OP   PARTIES.          255 

York  corporation  of  the  Boston  and  Albany  Railroad 
Company.  But  we  know  that  said  company  is  also 
incorporated  as  a  Massachusetts  corporation,  and,  pre- 
sumably by  virtue  of  such  latter  incorporation,  it  has 
the  same  powers  of  owning  and  managing  corporate 
property  which  it  possesses  as  a  New  York  corpora- 
tion. In  fact,  the  location  of  physical  property  and 
the  exercise  of  various  corporate  functions  give  greater 
importance  to  the  Massachusetts  than  to  the  New  York 
corporation,  and  the  problem  is  whether,  for  the  pur- 
pose of  levying  a  tax  upon  decedent's  stock  upon  the 
theory  that  it  is  held  in  and  under  the  New  York  cor- 
poration, we  ought  to  say  that  such  latter  corporation 
owns  and  holds  all  of  the  property  of  the  consolidated 
corporation,  wherever  situated,  thus  entirely  ignoring 
the  existence  of  and  the  ownership  of  property  by  the 
Massachusetts  corporation.  It  needs  no  particular 
illumination  to  demonstrate  that,  if  we  take  such  a 
view,  it  will  clearly  pave  the  way  to  a  corresponding 
view  by  the  authorities  and  courts  of  Massachusetts 
that  the  corporation  in  that  state  owns  all  of  the  cor- 
porate property,  wherever  situated,  and  we  shall  then 
further  and  directly  be  led  to  the  unreasonable  and 
illogical  result  that  one  set  of  property  is  at  the  same 
time  solely  and  exclusively  owned  by  two  different  cor- 
porations, and  that  a  person  holding  stock  should  be 
assessed  upon  the  full  value  of  his  stock  in  each  juris- 
diction  We  shall  have  each  state  exacting  full 

compensation  upon  one  succession,  and  a  clear  case  of 
double  taxation.  And  if  the  corporation  had  been 
compelled,  for  sufficient  reasons,  to  take  out  incorpora- 
tion in  six  to  twenty  other  states,  each  one  of  them 
might  take  the  same  view  and  insist  upon  the  same 
exaction,  until  the  value  of  the  property  was  in  whole 
or  large  proportion  exhausted  in  paying  for  the  privi- 
lege of  succession  to  it.  While  undoubtedly  the  legis- 
lative authority  is  potent  enough  to  prescribe  and  en- 


256  INHERITANCE  TAXATION. 

force  double  taxation,  it  is  plain  that,  measured  by 
ordinary  principles  of  justice,  the  result  suggested 
would  be  inequitable  and  might  be  seriously  burden- 
some. ' ' 

The  doctrine  of  the  Massachusetts  and  New  York 
courts  in  the  Kingsbury  and  Cooley  cases72  to  the  effect 
that  where  a  corporation  is  chartered  in  two  or  more 
states  under  the  same  name,  has  but  one  issue  of  stock, 
and  its  property  and  franchises  in  the  different  states 
constitute  the  value  of  the  stock,  the  measure  of  the 
inheritance  tax  is  such  proportionate  part  of  the  value 
of  the  stock  as  the  franchises  and  property  of  the  cor- 
poration within  the  state  is  of  the  property  and  fran- 
chises in  the  several  states  in  which  the  corporation  is 
chartered,  has  been  approved  in  New  Hampshire.73 

Where  a  railroad  has  lines  in  states  adjoining  one  in 
which  an  inheritance  tax  is  being  levied  against  the 
estate  of  a  nonresident  decedent,  the  capital  stock 
should,  on  appraisement,  be  apportioned,  in  ascertain- 
ing the  proportion  of  the  property  within  the  state,  on 
the  basis  of  the  total  mileage,  including  branch  lines.78* 

§  184.  Stock  in  Foreign  Corporations. — Stock  in  a 
foreign  corporation,  held  by  a  resident  of  the  state  at 
the  time  of  his  death,  is  subject  to  the  inheritance  tax 
of  that  state,  on  the  theory  that  the  legal  situs  of  the 
stock  is,  as  personalty,  at  the  domicile  of  the  owner.74 

TZ  See  notes  70  and  71,  ante. 

7*  Gardiner  v.  Carter,  74  N.  H.  507,  69  Atl.  93&. 

"a  Estate  of  Thayer,  58  Misc.  Rep.  117,  110  N.  Y.  Supp.  751. 

T*  Estate  of  Merriam,  141  N.  Y.  479,  36  N.  E.  505;  Estate  of  Short, 
16  Pa.  63. 

The  supreme  court  of  New  York,  however,  on  one  occasion,  decided 
that  stock  in  a  corporation  organized  in  another  state,  and  there  hav- 
ing its  headquarters  and  paying  its  dividends,  is  not  subject  to  the 
New  York  transfer  tax,  although  the  owner  resided  in  New  York  at 
the  time  of  his  death:  Estate  of  Thomas,  3  Misc.  Rep.  388,  24  N.  Y. 
Supp.  713.  The  court  thought  the  stock  certificates  were  not  prop- 
erty within  the  state,  because  stock  certificates  are  not  themselves  the 


SITUS   OP   PROPERTY — NONRESIDENCE   OP   PARTIES.          257 

Sometimes  the  case  is  presented  of  stock  in  a  foreign 
corporation,  kept  or  deposited  within  the  state,  but 
owned  by  a  nonresident.  When  the  question  of  the 
taxability  of  such  stock  first  came  before  the  New  York 
court  of  appeals,  it  was  affirmed  that  the  legal  situs 
of  that  species  of  property  represented  by  certificates 
of  corporate  stock  is  where  the  corporation  exists  or 
where  the  shareholder  has  his  domicile,  and  hence  that 
stocks  and  bonds  of  a  foreign  corporation,  belonging 
to  a  nonresident  testator  and  at  the  time  of  his  death 
deposited  in  New  York,  were  not  subject  to  the  inher- 
itance tax  of  that  state.78  But  this  is  no  longer  the 
law  in  New  York,  for  it  has  since  been  decided  that 
where  a  nonresident  placed  stock  in  a  foreign  corpora- 
tion with  a  New  York  trust  company  to  be  sold,  and 
after  the  sale  allowed  the  proceeds  to  remain  in  the 
hands  of  this  company  under  an  agreement  that  it 
should  hold  the  fund  in  trust,  paying  interest  thereon, 
and  deliver  the  fund  to  him  on  two  days'  notice,  such 
property  was  within  the  state  and  subject  to  the  trans- 
fer tax  upon  his  death.78 

property,  but  evidences  of  the  rights  of  the  holder  in  the  property, 
of  the  corporation  situated  in  the  foreign  state. 

T5  Estate  of  James,  144  N.  Y.  6,  38  N.  E.  961.  This  decision  was 
followed  in  Matter  of  Bishop,  82  App.  Div.  112,  81  N.  Y.  Supp.  474, 
where  it  is  held  that,  as  stocks  in  a  foreign  corporation  owned  by  a 
nonresident  are  not  taxable  in  New  York,  there  is  no  reason  why  the 
executor  should  make  inventories  of  them  or  exhibit  the  condition  of 
the  estate  as  respects  them. 

fa  Estate  of  Blackstone,  69  App.  Div.  127,  74  N.  Y.  Supp.  508,  af- 
firmed, 171  N.  Y.  682,  64  N.  E.  1118,  188  U.  S.  206,  47  L.  Ed.  439, 
23  Sup.  Ct.  Rep.  277. 
17 


258  INHERITANCE  TAXATION. 


CHAPTER  XII. 
TRANSFERS  OF  PROPERTY  TO  ALIENS. 

§  190.  In  Absence  of  Treaty  Regulations. 

§  191.  Under  Treaties,  in  General. 

§  192.  Under  Treaty  With  France. 

§  193.  Under  Treaty  With  Bavaria. 

§  194.  Under  Treaty  With  Wurttemberg. 

§  195.  Under  Treaty  With  Italy— "Most  Favored  Nation"  Clause. 

§  196.  Under  Treaty  With  Spain. 

§  197.  Under  Treaty  With  Norway  and  Sweden. 

§  190.  In  Absence  of  Treaty  Regulations. — Between 
the  United  States  and  some  of  the  nations  of  the  world 
are  treaty  provisions  affecting,  in  some  degree,  the 
transmission  of  property  situated  in  this  country  to 
alien  heirs,  devisees,  and  legatees,  and  the  taxation 
of  the  same.  In  the  absence  of  any  treaty  restrictions, 
however,  it  is  clear  that  a  state,  in  the  exercise  of  its 
power  to  regulate  the  manner  and  terms  upon  which 
property,  real  or  personal,  within  its  dominion  shall  be 
transmitted  by  will  or  succession  to  aliens,  may  im- 
pose an  inheritance  tax  on  such  transmissions.  There 
can  be  no  valid  objection  to  such  a  tax,  whether  im- 
posed upon  citizens  and  aliens  alike  or  upon  aliens 
exclusively.  This  was  determined,  in  the  case  of  an 
early  Louisiana  statute,  by  the  supreme  court  of  that 
state  and  also  by  the  supreme  court  of  the  United 
States.1 

i  Section  24,  ante.  There  is  nothing  in  the  Louisiana  act  of  1894 
making  the  payment  of  the  succession  or  inheritance  tax  by  foreigners 
a  condition  precedent  to  a  right  of  inheritance;  the  law  permits  the 
foreigner  to  inherit,  but,  having  inherited,  charges  him  with  the  tax: 
Succession  of  Sala,  50  La.  Ann.  1099,  24  South.  674. 

An  alien  who  has  claimed  the  benefit  of  a  devise,  and  continues  to 
enjoy  its  use,  is  estopped  to  set  up  alienage  as  a  ground  for  recover- 
ing back  the  tax  paid  on  the  succession:  Seholey  v.  Kew,  90  U.  S. 
(23  Wall.)  331,  23  L.  Ed.  99. 


TRANSFERS  OP  PROPERTY  TO  ALIENS.  259 

A  state  is  entitled  to  the  tax  imposed  upon  legacies 
to  aliens,  although  the  statute  imposing  it  is,  after 
the  death  of  the  testator,  repealed.2  But  such  statute 
is,  unless  the  intention  of  the  legislature  clearly  ap- 
pears otherwise,  prospective  merely,  and  does  not  ap- 
ply to  the  estate  of  a  decedent  who  died  before  its 
enactment.*  Likewise,  a  treaty,  conflicting  to  some 
extent  with  the  statute,  is  not  operative  as  to  an  estate 
whose  owner  died  prior  to  the  making  of  the  treaty.* 

§  191.  Under  Treaties,  in  General. — It  seems  to  be 
conceded  that  the  acquisition  of  property  in  this  coun- 
try by  aliens  is,  to  some  extent,  a  proper  subject  for 
treaty  regulation ;  and  that  when  the  United  States  has 
entered  into  a  treaty  with  another  nation,  according 
to  citizens  of  the  latter  privileges  enjoyed  by  citizens 
of  the  former  in  the  matter  of  acquiring,  holding  and 
transmitting  property,  and  providing  that  they  shall 
not  be  required  to  pay  inheritance  or  succession  taxes 
which  citizens  of  the  United  States  are  not  compelled 
to  pay,  the  treaty  will  be  regarded  as  the  supreme 
law,  and  state  statutes  conflicting  with  it  should  yield.5 
Some  treaties  are  express  and  clear  on  the  question 
of  inheritance  taxation;  others  leave  room  for  interpre- 
tation and  conjecture.9 

§  192.  Under  Treaty  With  France.— The  treaty  of 
1853  between  the  United  States  and  France  declares 
that  Frenchmen  shall  not  be  subjected  to  inheritance 

2  Arnaud  v.  His  Executor,  3  La.  336;  Quessart  v.  Canouge,  3  La. 
560. 

a  Succession  of  Deyraud,  9  Rob.  (La.)  357;  Succession  of  Oyon, 
6  Rob.  (La.)  504,  41  Am.  Dec.  274. 

*  Prevost  v.  Greneaux,  60  U.  S.  (19  How.)  1,  15  L.  Ed.  572;  Succes- 
sion of  Schaffer,  13  La.  Ann.  113. 

»  See  succeeding  paragraphs  of  this  chapter. 

«  Extracts  from  various  treaties  are  set  forth  in  Succession  of  Rixner, 
48  La.  Ann.  552,  32  L.  R.  A.  177,  19  South.  597. 


260  INHERITANCE  TAXATION. 

taxes  different  from  those  paid  by  citizens  of  the 
United  States,  or  to  taxes  which  shall  not  be  equally 
imposed.  Since  the  adoption  of  that  treaty,  the  Louisi- 
ana statute  imposing  a  succession  on  aliens  exclusively 
has  been,  as  to  citizens  of  France,  inoperative.  The 
treaty,  it  was  said  in  an  early  decision,  must  be  obeyed 
as  the  supreme  law.7  The  latest  utterance  of  the 
Louisiana  court  on  the  question  is  this: 

"While  the  legislature  of  this  state  may  have  the 
right  of  prohibiting  Frenchmen  from  possessing  per- 
sonal or  real  property  by  the  same  title  and  in  the  same 
manner  as  citizens  of  the  United  States,  it  has  not  yet 
thought  proper  to  exercise  that  right.  On  the  con- 
trary, it  has  permitted  them,  up  to  the  present  time, 
in  that  respect,  to  stand  on  the  same  plane  with  our 
own  citizens.  Occupying  that  station,  the  provisions 
of  the  treaty  with  France  declare  that  in  no  case  shall 
they  be  subjected  to  taxes,  on  transfer,  inheritance 
or  any  other,  different  from  those  paid  by  our  own 
citizens  themselves,  or  to  taxes  which  shall  not  be 
equally  imposed. ' ' 8 

This  treaty  with  France  had  no  retrospective  opera- 
tion so  as  to  prevent  the  state  of  Louisiana  from 
enforcing  a  succession  tax  against  a  citizen  of  France 
who  claimed  as  heir  of  a  decedent  who  died  prior  to 
the  time  when  the  treaty  was  made.9  The  treaty  did 
not  go  into  effect  until  August  11,  1853,  and  hence  had 
no  effect  upon  the  estate  of  one  who  died  July  22, 
1853.10 

§  193.  Under  Treaty  With  Bavaria.— The  Louisi- 
ana court  has  given  the  same  effect  to  a  similar  treaty 

i  Succession  of  Dufour,  10  La.  Ann.  391 ;  Succession  of  Amat,  18  I/a. 
Ann.  403;  State  v.  Poydros,  9  La.  Ann.  165. 

«  Succession  of  Eabasse,  49  La.  Ann.  1405,  22  South.  767. 

»  Prevost  v.  Greneaux,  60  U.  S.  (19  How.)  1,  15  L.  Ed.  572,  affirming 
12  La.  Ann.  577. 

10  Succession  of  Schaffer,  13  La.  Ann.  113. 


TRANSFERS  OF  PROPERTY  TO  ALIENS.  261 

with  Bavaria,  the  consular  convention  of  1845  entered 
into  between  United  States  and  that  country,  and  has 
held  that  subjects  of  Bavaria,  like  citizens  of  France, 
are  exempt  from  the  ten  per  cent  tax  imposed  by  the 
Louisiana  statute  on  successions  going  to  aliens.11 

§  194.  Under  Treaty  With  Wurttemberg.  —  The 
Louisiana  statute  which,  to  use  its  exact  language,  pro- 
vides that  "each  and  every  person,  not  being  domi- 
ciliated  in  this  state,  and  not  being  a  citizen  of  any 
other  state  or  territory  in  the  Union,  shall  pay  a  tax 
of  ten  per  cent  on  all  sums  actually  received  from  a 
succession  of  a  deceased  person,"  came  before  the 
supreme  court  of  the  United  States  in  the  case  of  a 
subject  of  Wurttemberg,  and  it  was  pointed  out  that 
the  statute  did  not  make  any  discrimination  between 
citizens  of  the  state  and  aliens  in  the  same  circum- 
stances, a  citizen  of  Louisiana  domiciled  abroad  being 
subject  to  the  tax.  It  was  further  decided  that  the 
statute  did  not  conflict  with  the  provision  in  the  treaty 
with  Wurttemberg  that  "the  citizens  or  subjects  of 
each  of  the  contracting  parties  shall  have  power  to 
dispose  of  their  personal  property  within  the  states  of 
the  other,  by  testament,  and  their  legatees,  being  cit- 
izens or  subjects  of  the  other  contracting  parties,  shall 
succeed  to  their  personal  property,  and  may  take  pos- 
session thereof,  paying  such  duties  only  as  the  inhab- 
itants of  the  country,  where  said  property  lies,  shall 
be  liable  to  pay  in  like  cases."  The  court  was  of  the 
opinion  that  the  treaty  did  not  regulate  the  testa- 
mentary dispositions  of  citizens  or  subjects  of  the  con- 
tracting powers,  in  reference  to  property  within  the 
country  of  their  origin  or  citizenship.12 

The  application  of  the  New  York  transfer  tax  to  a 
subject  of  Wurttemberg  has  been  before  the  supreme 

11  Succession  of  Crusius,  19  La.  Ann.  369. 

"  Frederickson  v.  Louisiana,  64  U.  S.  (23  How.)  445,  16  L.  Ed.  577. 


262  INHERITANCE  TAXATION. 

court  in  connection  with  the  provision  of  the  treaty 
of  1844  with  that  kingdom,  providing  that  l '  where,  on 
the  death  of  any  person  holding  real  property  within 
the  territories  of  one  party,  such  real  property  would, 
by  the  laws  of  the  land,  descend  on  a  citizen  or  sub- 
ject of  the  other,  were  he  not  disqualified  by  alienage, 
such  citizen  or  subject  shall  be  allowed  the  term  of 
two  years  to  sell  the  same  ....  and  to  withdraw  the 
proceeds  thereof  ....  exempt  from  all  duties  of  de- 
traction. ' ' 

The  court  declares  that  the  tax  is  not  a  detraction 
tax,  but  a  succession  tax,  and  that  a  subject  of  Wurt- 
temberg  has  no  more  cause  for  complaint  than  he 
would  have  of  the  ordinary  annual  tax  upon  property; 
he  is  treated  the  same  as  our  own  citizens  are,  receiv- 
ing precisely  what  they  receive.  All  that  is  granted 
to  him  by  the  treaty  is  that  the  property  to  which  he 
succeeds  under  the  laws  of  the  state  shall  not  be 
taxed  when  he  comes  to  take  the  property,  or  its  pro- 
ceeds, out  of  the  state.13 

§  195.  Under  Treaty  With  Italy— "Most  Favored 
Nation"  Clause.— The  treaty  of  1871  between  United 
States  and  Italy  contains  the  provision:  "The  citizens 
of  each  of  the  contracting  parties  shall  have  power  to 
dispose  of  their  personal  goods  within  the  jurisdiction 
of  the  other,  by  sale,  donation,  testament,  or  otherwise; 
and  their  representatives,  being  citizens  of  the  other 
party,  shall  succeed  to  their  personal  goods,  whether 
by  testament  or  ab  intestate,  and  they  may  take  pos- 
session thereof,  either  by  themselves  or  others  acting 
for  them,  and  dispose  of  the  same  at  their  will,  paying 
such  duties  only  as  the  inhabitants  of  the  country 
wherein  such  goods  are,  shall  be  subject  to  pay  in  like 
cases.  As  for  the  case  of  real  estate  the  citizens  and 

"  Estate  of  Strobel,  5  App.  Div.  621,  39  N.  Y.  Supp.  169. 


TRANSFERS  OF  PROPERTY  TO  ALIENS.  263 

subjects  of  the  two  contracting  parties  shall  be  treated 
on  the  footing  of  the  most  favored  nation."  By  vir- 
tue of  this  "most  favored  nation  cause,"  it  has  been 
held  in  Louisiana  that  subjects  and  citizens  of  Italy, 
in  inheriting  real  estate  situate  in  Louisiana,  are  quite 
as  much  entitled  to  the  protection  of  the  treaty  between 
United  States  and  France,  referred  to  in  a  preceding 
paragraph,14  as  are  the  subjects  and  citizens  of 
France.16 

§  196.  Under  Treaty  With  Spain.— The  treaty  of 
1795  between  the  United  States  and  Spain  provides 
that ' '  the  citizens  and  subjects  of  each  party  shall  have 
power  to  dispose  of  their  personal  goods,  within  the 
jurisdiction  of  the  other,  by  testament,  donation  or 
otherwise,  and  their  representatives  being  subjects  or 
citizens  of  the  other  party,  shall  succeed  to  their  said 
personal  goods,  whether  by  testament  or  ab  intestate, 
and  they  may  take  possession  thereof,  either  by  them- 
selves or  others  acting  for  them,  and  dispose  of  the 
same  at  their  will,  paying  such  dues  only  as  the  inhab- 
itants of  the  country  wherein  the  said  goods  are,  shall 
be  subject  to  pay  in  like  cases,  ....  and  where,  on 
the  death  of  any  person  holding  real  estate  within  the 
territory  of  the  one  party,  such  real  estate  would  by 
the  laws  of  the  land  descend  on  a  citizen  or  subject  of 
the  other,  were  he  not  disqualified  by  being  an  alien, 
such  subjects  shall  be  allowed  a  reasonable  time  to  sell 
the  same,  and  to  withdraw  the  proceeds  without  moles- 
tation, and  exempt  from  all  rights  of  detraction  on 
the  part  of  the  government  of  the  respective  states." 
It  has  been  decided  that  this  treaty  provision  does  not 
prohibit  the  state  from  imposing  upon  Spanish  citizens 
a  succession  tax  for  the  privilege  of  taking  real  estate 

i*  Section  192,  ante. 

IB  Succession  of  Eixnor,  48  La.  Ann.  552,  32  L.  E.  A.  177,  19  South. 
597. 


264  INHERITANCE  TAXATION. 

by  inheritance;  but  it  has  also  been  decided  that  the 
statute  of  that  state  imposing  a  heavier  legacy  tax 
upon  subjects  of  Spain  and  citizens  of  Louisiana  re- 
siding abroad  than  upon  resident  citizens  of  Louisiana, 
conflicted  with  the  treaty.16  Said  the  court; 

1  'To  extend  a  statute  imposing  a  succession  tax  upon 
heirs  or  legatees,  citizens  of  Louisiana,  who  reside 
abroad,  to  Spanish  heirs  or  legatees  living  in  their  own 
country,  would  be  to  take  out  of  the  treaty  most  of  its 
life,  leaving  its  benefits  almost  nominal.  We  would 
not  feel  warranted  in  giving  to  the  treaty  the  narrow 
scope  contended  for,  leading,  as  it  would,  to  results 
evidently  not  contemplated.  We  are  of  the  opinion 
that  the  object  of  the  treaty  was  to  secure  the  citizens 
or  subjects  of  each  from  being  discriminated  against 
under  the  laws  of  the  other  for  or  on  account  of  their 
alienship.  This  object  would  be  entirely  thwarted  if 
the  Spanish  heirs  and  legatees  living  in  Spain  could 
be  successfully  discriminated  against  by  being  made 
to  fall  under  the  ban  of  statute  discrimination,  either 
actually  or  apparently  aimed  at  what  would  be  (if  so 
aimed)  only  exceptional,  and  a  very  small 'proportion 
of  the  people  of  the  state.  Most  Spanish  heirs  and 
legatees  would  be  in  that  precise  situation.  We  would 
hold  that  Spanish  heirs  and  legatees,  under  the  treaty, 
were  entitled  to  share  in  the  benefits  accorded  gener- 
ally to  the  people  of  the  state." 

§  197.  Under  Treaty  With  Norway  and  Sweden. — 
According  to  a  recent  decision  of  the  supreme  court 
of  Washington,  a  provision  of  the  treaty  between  the 
United  States  and  Norway  and  Sweden,  that  the  sub- 
jects of  the  contracting  parties  in  the  respective  coun- 
tries may  freely  dispose  of  their  goods  and  effects  by 
testament,  and  that  the  heirs  shall  receive  the  succes- 

16  Succession  of  Sala,  50  La.  Ann.  1009,  24  South.  674. 


TRANSFERS  OP  PROPERTY  TO  ALIENS.  265 

sion  without  having  occasion  to  take  out  letters  of 
naturalization,  will  prevent  a  state  of  the  Union  from 
imposing  any  higher  inheritance  tax  upon  property 
devised  or  bequeathed  by  one  of  its  citizens  to  a  citizen 
of  Norway  or  Sweden  than  it  imposes  in  case  of  de- 
vises or  bequests  to  its  own  citizens  of  the  same  degree 
of  relationship  to  the  testator  under  similar  circum- 
stances, and  it  is  immaterial  that  the  treaty  also  pro- 
vides that  the  states  shall  be  at  liberty  to  make  respect- 
ing this  matter  such  laws  as  they  think  proper.17  In 
the  course  of  its  opinion  the  court  has  this  to  say: 

"The  language  of  the  treaty  giving  the  citizens  of 
the  contracting  parties  the  right  to  dispose  of  their 
goods  and  effects  by  testament,  and  the  right  to  receive 
the  succession,  must  mean  the  right  to  so  give  and 
receive  as  such  right  may  be  defined  by  the  general 
laws  in  force  in  the  country  where  the  property  is 
situated.  It  could  not  mean  otherwise,  because  there 
is  no  law  to  which  we  may  turn,  or  which  the  contract- 
ing parties  could  have  in  view,  in  the  making  of  the 
treaty,  defining  testamentary  and  succession  rights, 
save  the  laws  of  the  respective  countries.  There  is  no 
universal  or  international  law  of  succession  to  prop- 
erty. 

' '  In  order,  then,  to  give  force  and  effect  to  the  treaty, 
and  avoid  the  destruction  of  the  very  end  it  was 
plainly  intended  to  accomplish,  we  must  conclude  that 
the  testamentary  and  inheritance  rights  secured  there- 
by are  such  that  they  cannot  be  impaired,  except  as 
such  rights  and  privileges  of  citizens  may  be  im- 
paired by  the  laws  of  their  own  country.  The  enforce- 
ment of  a  law  which  would  have  the  effect  of  burdening 
the  succession  of  property  passing  to  the  citizens  of 
Sweden  and  Norway,  greater  than  that  imposed  upon 
property  passing  to  our  own  citizens,  would,  in  our 

IT  In  re  Stixrud,  58  Wash.  339,  Ann.  Cas.  1912A,  850,  33  L.  B.  A., 
N.  S.,  632,  109  Pac.  343. 


268  INHERITANCE  TAXATION. 

opinion,  be  a  plain  violation  of  the  rights  secured  by 
this  treaty.  The  treaty  must  be  held  to  mean  that  so 
far  as  the  right  of  succession  to  property  from  de- 
ceased persons  is  concerned,  the  citizens  of  each  coun- 
try stand  on  an  equal  footing.  Otherwise  its  evident 
intent  and  purpose,  touching  the  matters  here  involved, 
might  be  rendered  of  no  effect  by  the  passage  and  en- 
forcement of  laws  discriminating  against  citizens  of 
other  countries,  under  the  guise  of  exercising  the  tax- 
ing power  or  the  power  to  control  the  succession  of 
property.  If  these  appellants  (residents  and  citizens 
of  Norway  who  were  devisees  and  legatees  of  a  nat- 
uralized citizen  of  the  United  States  and  a  resident  of 
the  state  of  Washington)  can  be  discriminated  against 
by  withholding  from  them  in  the  form  of  taxation  a 
larger  portion  of  the  property  left  them  than  can  be 
withheld  from  others  under  the  same  circumstances, 
then,  by  the  same  method  of  discrimination,  their  right 
of  succession  to  the  property  may  be  entirely  destroyed, 
by  taking  all  of  it;  even  though  others  may  not  have 
their  privilege  of  succession  thus  impaired  in  the  least. 
"We  think  this  treaty  was  intended  to  secure,  and 
does  secure,  to  the  citizens  of  Sweden  and  Norway  the 
right  to  succeed  to  property  left  them  by  will  or  inherit- 
ance, upon  the  same  terms  as  such  rights  of  our  own 
citizens  may  be  defined  by  law.  These  are  the  rights 
and  the  law  defining  them,  which  must  have  been  in 
view  in  the  making  of  the  treaty,  rather  than  possible 
discriminating  laws  affecting  the  rights  of  aliens  dif- 
ferent from  citizens;  for  to  concede  the  right  to  make 
and  enforce  such  laws  is  to  concede  the  right  to  nullify 
the  provisions  of  the  treaty.  This  construction  of  the 
terms  of  the  treaty  finds  additional  support  when  we 
call  to  our  aid  the  general  rule  of  liberal  construction 
applied  by  the  courts,  both  state  and  federal,  in  such 
cases." 


PERSONS  OB  FUND  LIABLE  FOB  TAX.  267 


CHAPTER  XIII. 


§  205.  Distributee  or  His  SHare  of  Estate. 

§  206.  Personal  Liability  of  Distributee. 

§  207.  Effect  of  Renunciation  of  Legacy. 

§  208.  Effect  of  Tax  on  Personalty  in  Another  State. 

§  209.  Executors  or  Administrators. 

§  210.  Effect  of  Settlement  of  Accounts  and  Distribution. 

§  211.  Transferees  or  Assignees. 

§  212.  On  Transfer  of  Stocks  and  Deposits. 

§  205.  Distributee  or  His  Share  of  Estate.— No  rea- 
son is  apparent  why  a  testator  may  not  direct  his 
executors  to  pay  the  inheritance  tax  on  any  particular 
legacies  or  devises  from  his  estate,  to  the  end  that  the 
legatees  or  devisees  shall  be  benefited  to  the  full  ex- 
tent of  their  respective  gifts.1  But  in  the  absence  of 

i  Kingsbury  v.  Bazeley,  75  N.  H.  13,  139  Am.  St.  Rep.  664,  20  Ann. 
Cas.  1355,  70  Atl.  916  (holding  that  a  provision  in  a  will,  making  be- 
quests to  various  individuals,  to  various  charitable  institutions,  and  to 
individuals  in  trust  for  a  charitable  use,  that  the  executors  pay  from 
the  estate  any  and  all  inheritance  and  succession  taxes  upon  any  legacies 
given  to  individuals,  has  no  reference  to  the  legacy  given  to  the  in- 
dividuals in  trust  for  a  charitable  use) ;  Estate  of  Cummings,  12  Pa. 
Co.  Ct.  46. 

In  Jackson  v.  Tailer,  41  Misc.  Rep.  36,  83  N.  Y.  Supp.  567,  affirmed, 
96  App.  Div.  625,  88  N.  Y.  Supp.  1104,  it  was  thought  that  a  testa- 
mentary provision,  "I  do  hereby  further  authorize  and  empower  my 
said  executors,  in  Ms  or  their  discretion,  to  pay  any  or  all  of  the 
aforesaid  legacies  within  one  year  after  my  decease,  without  any  rebate 
or  reduction  whatever,"  did  not  entitle  the  legatee  to  receive  his  legacy 
free  of  the  transfer  tax.  In  the  course  of  the  opinion  the  court  used 
this  language:  "Although  the  executor  is  required  to  pay  the  tax,  he 
pays  it,  not  for  account  of  the  estate,  and  as  a  deduction  from  the 
legacy,  but  on  account  of  the  legatee  upon  whom  the  tax  is  imposed. 
In  legal  effect  the  result,  as  between  the  estate  and  the  legatee,  is  pre- 
cisely the  same  as  if  the  legacy  were  to  be  paid  over  to  the  legatee 
intact,  and  then  the  legacy  was  to  be  collected  from  him.  It  is  merely 
for  the  convenience  of  the  state,  and  to  insure  certainty  of  collection, 
that  the  duty  is  cast  upon  the  executor  of  paying  the  tax.  Strictly 
speaking,  therefore,  the  tax  is  not  a  rebate  or  reduction  from  the  legacy. 


268  INHERITANCE  TAXATION. 

any  such  direction,  and  in  cases  of  intestacy,  the  tax 
must  come  out  of  each  particular  share  or  interest 
which  is  taken  by  the  legatee,  devisee,  or  heir,  rather 
than  out  of  the  general  property  of  the  estate.  The 
fact  that  some  distributive  shares  may  be  subject  to 
lower  rates  than  others,  while  some  may  be  entirely 
exempt,  shows  the  necessity  of  this  rule.  In  the  case 
of  an  ordinary  legacy  or  distributive  share,  the  exec- 
utor or  administrator  is  required  to  deduct  the  tax 
therefrom,  or  to  collect  the  same  from  the  distributee, 
before  delivering  to  him  his  share  or  legacy;  and  in 
case  a  legacy  is  charged  upon  or  made  payable  out 
of  real  estate^  the  heir  or  devisee,  before  paying  it, 
is  required  to  deduct  the  tax  therefrom  and  pay  it  to 
the  executors  or  administrators,  or  they  are  com- 
manded to  collect  the  tax  from  the  property  upon 
which  it  is  charged,  and  until  the  tax  is  so  paid  or 
collected,  it  remains  a  charge  upon  the  real  estate.2 

In  determining  the  amount  of  the  money  in  the 
hands  of  executors  available  for  the  payment  of  a 

Doubtless,  the  testator  may,  by  apt  words,  direct  that  the  tax  upon  a 
particular  legacy  or  class  of  legacies  should  be  paid  out  of  the  residuary 
estate,  but,  as  pointed  out  in  Matter  of  Gihon,  169  N.  Y.  443,  62  N.  E. 
561,  such  a  provision  would  simply  amount  to  an  increase  of  the  legacy 
by  the  amount  of  the  tax." 

2  Estate  of  Stone,  132  Iowa,  136,  10  Ann.  Gas.  1033,  109  N.  W.  455; 
Succession  of  Pargoud,  13  La.  Ann.  367;  State  v.  Vinsonhaler,  74  Neb. 
675,  105  N.  W.  472;  Estate  of  Thomson,  12  Phila.  36;  Estate  of  Clark, 
37  Wash.  671,  80  Pac.  267;  Knowlton  v.  Moore,  178  U.  S.  41,  44  L.  Ed. 
969,  20  Sup.  Ct.  Rep.  747.  "Theoretically  such  tax  must  come  from  the 
distributee  of  the  estate  and  out  of  his  share.  It  is  made  the  duty  of 
the  administrator  to  protect  the  state  against  loss,  and  he  is  required 
to  withhold  it  out  of  the  share  of  each  distributee":  Estate  of  Carroll, 
149  Iowa,  617,  128  N.  W.  929. 

"The  tax  is  computed,  not  on  the  aggregate  valuation  of  the  whole 
estate  of  decedent  considered  as  the  unit  for  taxation,  but  on  the  value 
of  the  separate  interest  into  which  it  is  divided  by  the  will  or  by  the 
statute  laws  of  the  state,  and  is  a  charge  against  each  share  or  interest 
according  to  its  value,  and  against  the  person  entitled  thereto.  The 
principle  that  the  tax  is  a  succession  tax  imposed  as  a  burden  on  each 
person  claiming  succession,  measured  by  the  value  of  his  interest,  and 


PERSONS   OB   FUND   LIABLE   FOR   TAX.  269 

legacy,  upon  the  petition  of  the  legatee  for  distribu- 
tion, the  court  is  not  "required  to  take  into  considera- 
tion the  amount  of  the  collateral  inheritance  tax.  Such 
tax  is  not  one  of  the  expenses  of  administration  or  a 
charge  upon  the  general  estate  of  the  decedent,  but 
is  in  the  nature  of  an  impost  tax  or  tax  upon  the  right 

collectible  out  of  his  interest  only,  was  reaffirmed  in  the  case  of  Tn  re 
Hoffman,  143  N.  Y.  327,  38  N.  E.  311":  Estate  of  Westurn,  152  N.  Y. 
93,  46  N.  E.  315. 

An  inheritance  tax,  while  not  a  debt  of  the  testator,  is  properly 
chargeable  to  the  beneficiaries:  Estate  of  Lotzgesell,  62  Wash.  352, 
113  Pac.  1105. 

It  seems  but  reasonable,  as  stated  in  Goddard  v.  Goddard,  9  B.  I. 
293,  that  specific  legatees  should  severally  bear  the  duties  required 
in  respect  of  their  respective  legacies,  rather  than  that  those  duties 
should  be  paid  out  of  the  residue.  Otherwise,  if  it  should  happen 
that  the  duties  were  in  excess  of  the  residue,  the  residuary  legatee 
would  lose  all  benefit  of  the  testator's  bounty.  The  law  prescribes 
a  rate  of  taxation  varying  according  as  the  legatees  are  related 
to  the  testator  more  or  less  nearly  within  certain  degrees.  If  the 
entire  tax  is  to  be  paid  out  of  the  residue,  then  the  distant  relatives 
may  suffer  no  more,  and  in  fact  he  may  suffer  even  less,  from  the 
tax  than  the  testator's  children  or  other  near  relatives. 

It  is  the  duty  of  the  personal  representative,  before  paying  over 
any  legacy  or  distributive  share,  to  exact  from  the  recipient,  or 
to  retain  in  his  hands,  out  of  the  legacy  or  distributive  share,  a 
sum  sufficient  to  pay  the  collateral  inheritance  tax.  If  the  tax  was 
to  be  paid  out  of  the  estate,  it  would,  in  many  cases,  operate  to 
the  injury  of  lineal  descendants  and  to  the  children  of  the  deceased: 
Hunter  v.  Husted,  45  N.  C.  141. 

No  one  can  be  made  liable  for  the  payment  of  a  share  of  the 
United  States  succession  tax  due  on  the  descent  of  a  tract  of  land 
greater  than  his  share  in  the  land:  Wilhelmi  v.  Wade,  65  Mo.  39. 

If  a  succession  is  insolvent,  and  there  is  no  inheritance  nor  legacies  for 
the  heirs,  it  is  not  liable  for  an  internal  revenue  tax:  Johnson  v.  Dunbar, 
28  La.  Ann.  271. 

An  administrator  who  has  paid 'the  transfer  tax  on  real  estate 
from  personal  property  is  subrogated,  as  against  the  heirs  to  whom 
the  real  estate  has  descended,  to  the  claim  for  the  same  for  the 
benefit  of  the  creditors  of  the  estate:  Hughes  v.  Golden,  44  Misc. 
Eep.  128,  89  N.  Y.  Supp.  765. 

Devisees  may,  as  against  third  persons,  maintain  an  action  to 
recover  the  land,  notwithstanding  the  inheritance  tax  is  unpaid  and 
the  statute  empowers  the  executor  to  sell  the  land  to  enforce  the 
tax:  Weller  v.  Wheelock,  155  Mich.  698,  118  N.  W.  609. 


270  INHERITANCE  TAXATION. 

of  succession,  and  is  imposed  upon  the  several  amounts 
of  the  decedent's  estate  to  which  the  successors  thereto 
are  respectively  entitled.  The  tax  is  computed,  not 
on  the  aggregate  valuation  of  the  whole  estate  of  the 
decedent  considered  as  the  unit  for  taxation,  but  on 
the  value  of  the  separate  interests  in  which  it  is  divided 
by  the  will'  or  by  the  statute  laws  of  the  state,  and  is 
a  charge  against  each  share  or  interest  according  to 
its  value  and  against  the  person  entitled  thereto. ' '  * 

§  206.  Personal  Liability  of  Distributee. — Under 
the  United  States  revenue  act  of  1864,  distributees 
were  not  liable  in  personam  for  the  inheritance  tax,  and 
no  action  would  lie  against  them  to  recover  it.*  Pos- 
sibly this  may  be  true  of  some  of  the  present  state 
statutes,  for  they  provide  what  is,  probably  in  most 
instances,  a  more  efficient  remedy,  by  making  the 
executor  or  administrator  personally  liable  for  the 
tax  in  case  he  makes  distribution  without  collecting 
it  as  the  law  directs.  Generally,  however,  it  is  believed 
that  the  statutes  of  the  various  states  are  interpreted 
as  imposing  a  personal  liability  for  the  tax  upon  the 
distributee  himself;5  and  if  the  executors  or  adminis- 
trators actually  pay  over  the  money  of  the  decedent 
to  a  distributee  or  legatee  without  retaining  therefrom 
the  inheritance  tax,  it  becomes,  to  the  extent  of  the 
tax,  money  had  and  received  by  him  for  the  use  of 
the  state,  and  an  action  of  assumpsit  may  be  main- 
tained against  such  distributee  or  legatee  therefor.6 

§  207.  Effect  of  Renunciation  of  Legacy. — Since 
the  inheritance  tax  is  imposed  solely  upon  the  trans- 

»  Estate  of  Chesney,  1  Gal.  App.  30,  81  Pac.  679.  ' 

*  United  States  v.  Allen,  9  Ben.  154,  f  Fed.  Gas.  No.  14,430;  United 
States  v.  Pennsylvania  Co.,  27  Fed.  539. 

6  Estate  of  Westurn,  152  N.  Y.  93,  46  N.  E.  315;  Estate  of  Mc- 
Kennan  (S.  D.),  130  N.  W.  33. 

e  Montague  v.  State,  54  Md.  481;  Fisher  v.  State,  106  Md.  104, 
66  Atl.  661. 


PERSONS   OB   FUND   LIABLE   FOB   TAX.  271 

fer,  that  is,  upon  the  change  in  the  title  or  ownership, 
and  is  collectible  out  of  each  specific  share  or  interest, 
not  out  of  the  general  property  of  the  estate,  then,  if 
no  transfer  is  effected,  and  no  property  goes  to  a  lega- 
tee, because  he  renounces  his  legacy,  there  can  be  no 
tax  enforced  with  respect  to  him.  On  his  effective 
renunciation,  the  title  to  the  gift  remains  in  the  estate, 
to  be  disposed  of  by  the  terms  of  the  will,  and  the  suc- 
cession is  taxable  in  accordance  with  the  nature  of 
the  ultimate  succession.7 

§  208.  Effect  of  Tax  on  Personalty  in  Another 
State. — The  supreme  court  of  New  Hampshire — after 
announcing  the  doctrine  that  the  inheritance  tax  im- 
posed upon  property  distributed  through  the  courts 
of  that  state  is  deducted  from  the  legacy,  and  is  not 
a  part  of  the  expenses  of  administration,  and  that  a 
testator  who  has  made  no  provision  for  the  payment 
of  the  tax  from  his  estate  must  have  intended  the 
actual  benefit  to  be  received  by  the  subject  of  his 
bounty  to  be  as  much  less  than  the  sum  named  in 
the  will  as  he  is  presumed  to  have  known  that  the 
state  would  take  for  itself  in  executing  his  expressed 
wish  for  the  transmission  of  his  property,  decides 
that  inheritance  taxes  paid  by  the  executor  in  another 
state  to  get  possession  of  property  there  for  adminis- 
tration in  New  Hampshire,  the  state  of  the  testa- 
tor's domicile,  are  not  a  charge  against  the  estate 
as  expenses  of  administration,  or  deductible  pro  rata 
from  the  various  legacies.  The  court  makes  it  clear, 
however,  that  no  general  rule  can  be  laid  down  which 
will  solve  all  cases ;  for  it  is  competent  for  the  testator 
to  provide  how  the  tax  shall  be  treated,  and  the  ques- 
tion of  his  provision  in  that  respect  is  one  of  inten- 

T  Estate  of  Stone,  132  Iowa,  136,  10  Ann.  Cas.  1033,  109  N.  W. 
455;  Estate  of  Wolfe,  89  App.  Div.  349,  85  N.  Y.  Supp.  949,  affirmed, 
179  N.  Y.  599,  72  N.  E.  1152. 


272  INHERITANCE  TAXATION. 

tion,  which  intention,  unless  clearly  expressed,  may 
not  readily  be  inferred  in  view  of  the  varying  nature 
of  the  property,  the  character  of  the  gift  as  specific 
or  otherwise,  and  other  evidentiary  matters  proper  to 
consider.8 

§  209.  Executors  or  Administrators. — For  the  con- 
venience of  the  state,  and  in  order  to  insure  certainty 
of  payment,  the  executor  or  administrator  is  required 
by  most  statutes  to  deduct  the  inheritance  tax  from 
legacies  or  distributive  shares,  or  collect  it  from  the 
legatees  or  distributees,  before  delivering  to  them  their 
legacies  or  distributive  shares  in  the  estate;  and,  if 
he  fails  to  do  so,  he  himself  becomes  liable  for  the 
taxes  thus  left  unpaid  or  uncollected.  The  personal 
representative  pays  the  tax,  not  on  account  of  the 
estate,  but  on  account  of  the  legatee  or  distributee, 
whom  the  government  is  unwilling  solely  to  trust.' 

§  210.  Effect  of  Settlement  of  Accounts  and  Dis- 
tribution.— Before  the  final  account  of  an  executor  or 
administrator  can  be  said  to  show  that  the  estate  is 
in  condition  to  be  closed,  it  should  appear  therefrom 
that  the  inheritance  tax  has  been  paid.10  Distribution 
of  the  estate  cannot  properly  be  made  until  the  tax  is 
paid.  So  long  as  the  tax  remains  unpaid,  the  liability 

•  Kingsbury  v.  Bazeley,  75  N.  H.  13,  139  Am.  St.  Rep.  664,  20 
Ann.  Gas.  1355,  70  Atl.  916. 

9  McMahon   v.    Jones,    14   Abb.    N.    0.    406;    Estate    of   Vanderbilt, 
2  Con.  319,  10  N.  Y.  Supp.  239;   Estate  of  Wolfe,  66  Hun,  389,  29 
Abb.   N.   C.   340,   21   N.   Y.   Supp.   515,   522;    Estate   of   Hackett,   14 
Misc.  Eep.   282,  35   N.  Y.   Supp.   1051;   Jackson  v.   Taller,  41   Misc. 
Rep.  36,  83  N.  Y.  Supp.  567;  Estate  of  Wolfe,  89  App.  Div.  349,  85 
N.  Y.  Supp.  949,  affirmed,  179  N.  Y.  599,  72  N.  E.  1152;  Hunter  v. 
Husted,  45  N.  C.  141. 

An  executor  is  not  liable,  as  such,  for  a  collateral  tax  to  the  state 
upon  a  devise  of  land  to  himself,  though  he  is  liable  as  an  individual: 
State  v.  Brevard,  62  N.  C.  141. 

10  Estate  or  Lauder,  6  Gal.  App.  744,  93  Pac.  202;  Becker  Y.  Nye, 
8  Gal.  App.  129,  96  Pac.  333. 


PERSONS   OB   FUND   LIABLE   FOB   TAX.  273 

of  the  personal  representative  and  the  distributees  is 
not  affected  by  the  action  of  the  probate  court  in 
allowing  the  accounts  of  such  representative  and  or- 
dering distribution  of  the  estate.  Liability  for  the 
tax  cannot  be  evaded,  and  the  rights  of  the  state  to 
its  revenue  ignored,  by  procuring,  in  advance  of  the 
payment  of  the  tax,  the  settlement  of  the  final  account 
of  the  executor  or  administrator  and  the  distribution 
of  the  estate  to  the  heirs,  devisees,  and  legatees.  The 
fact  that  the  probate  court  has  jurisdiction  and  the 
parties  act  in  good  faith  is  immaterial.  The  state  is 
entitled  to  insist  that  the  estate  be  settled  according 
to  law.11 

§  211.  Transferees  or  Assignees. — The  inheritance 
tax  is  not  defeated  by  a  transfer  of  the  property,  but 
the  transferee  is  not  liable  personally  beyond  the 
amount  of  the  property  coming  into  his  hands.12  A 
conveyance  or  transfer  to  take  effect  on  the  death 
of  the  grantor,  made  with  intent  to  evade  the  tax,  is 
not  invalid  for  that  reason,  nor  is  the  tax  defeated, 

"  Montgomery  v.  Gilbertson,  134  Iowa,  291,  10  L.  E.  A.,  N.  S., 
986,  111  N.  W.  964;  Attorney  General  v.  Stone,  209  Mass.  186,  95 
N.  E.  395;  Attorney  General  v.  Bafferty,  209  Mass.  321,  95  N.  E. 
747;  Estate  of  Gumming,  142  App.  Div.  377,  127  N.  Y.  Supp.  109. 

In  the  above  Iowa  c-a&e  it  is  held  that  the  turning  over,  without 
authority  of  the  court,  by  executors,  within  a  few  days  after  their 
appointment,  without  any  publication  of  notice  of  such  appoint- 
ment, to  the  father  of  minor  legatees,  who  had  no  authority  to  re- 
ceive them,  legacies  belonging  to  the  minors,  does  not  prevent  the 
operation  upon  them  of  an  inheritance  tax  under  a  law  which  had, 
prior  to  that  time,  been  declared  invalid,  but  which  was  amended 
so  as  to  validate  it  before  the  distribution  was  approved  by  the 
court. 

12  Estate  of  Bushnell,  73  App.  Div.  325,  77  N.  Y.  Supp.  4,  affirmed, 
172  N.  Y.  649,  65  N.  E.  1115. 

A  purchaser  of  land,  upon  which   the  succession  tax  imposed  by 
the  act  of  Congress  of  1864  was  due,  incurred  no  personal  liability; 
but  he  took  title  subject  to  the  lieu  of  the  tax:  Wilhelmi  y.  Wade, 
65  Mo.  39. 
18 


274  INHERITANCE  TAXATION. 

since  the  fund  or  property  is  liable  to  taxation  in  the 
hands  of  the  grantee,  donee,  or  transferee.18 

The  succession  tax  is  measured  by  the  legal  rela- 
tion which  the  legatee  bears  to  the  testator,  and  is 
not  affected  by  the  relation  which  the  assignee  of 
legatee  bears  to  him.1* 

§  212.    On  Transfer  of  Stocks  and  Deposits.— The 

statutes  usually  guard  against  evasion  of  the  inherit- 
ance tax  on  certain  stocks,  securities,  and  contents  of 
safe  deposit  boxes,  by  providing  that  the  transfer 
or  delivery  thereof  shall  not  be  made  without  giving 
notice  to  the  fiscal  officers  of  the  state  or  making  pro- 
vision for  payment  of  the  tax ;  and,  in  case  the  transfer 
or  delivery  is  made  without  complying  with  the  law, 
then  the  persons  responsible  for  the  violation  of  the 
law  are  liable  for  the  tax. 

i«  State  Street  Trust  Co.  v.  Stevens,  209  Mass.  373,  95  N.  E.  851. 
i*  Estate  of  Cook,  187  N.  Y.  253,  79  N.  E.  991. 


LIEN   OP   TAX.  275 


CHAPTER  XIV. 

LIEN  OP  TAX. 

§  215.  Statutory  Provisions,   in   General. 

§  216.  Scope  and   Extent  of  Lien. 

§  217.  Priority  of  Liens. 

§  218.  Judicial   Sale  or   Equitable   Conversion   of  Property. 

§  215.  Statutory  Provisions,  in  General,— For  the 
better  protection  of  the  government,  inheritance  taxes 
are  made  a  lien  upon  the  property  transferred  or  trans- 
mitted. The  statutory  provisions  of  the  several  states 
on  this  point  vary  considerably,  as  might  be  expected, 
but  the  recent  California  statute  is  perhaps  typical. 
It  reads  thus:  "Such  taxes  shall  be  and  remain  a  lien 
upon  the  property  passed  or  transferred  until  paid,  and 
the  person  to  whom  the  property  passes  or  is  trans- 
ferred, and  all  administrators,  executors,  and  trustees 
of  every  estate  so  transferred  or  passed,  shall  be  liable 
for  any  and  all  such  taxes  until  the  same  shall  have 
been  paid  as  hereinafter  directed;  provided,  that  un- 
less sued  for  within  five  years  after  they  are  due  and 
legally  demandable,  such  taxes  shall  cease  to  be  a  lien 
as  against  any  bona  fide  purchaser  of  real  property; 
and  provided  that  no  such  lien  shall  cease  within  five 
years  from  the  date  of  the  passage  of  this  act."  1 

§  216.  Scope  and  Extent  of  Lien. — The  scope  of 
the  lien  was  recently  before  the  supreme  court  of  New 
York,  when  it  was  held  that  a  purchaser  of  real  prop- 
erty was  not  justified  in  rejecting  the  title  solely  be- 
cause the  transfer  tax  was  a  lien  thereon.  The  prop- 
erty contracted  to  be  sold  was  a  part  of  the  general 
estate  of  the  testator,  and  was  not  specifically  devised, 

i  See  California  statute,  post.  As  to  the  lien  of  the  tax  imposed 
by  the  acts  of  Congress  of  1864  and  1874,  see  United  States  T. 
Hazard,  8  Ted.  380;  .United  States  v.  Truck,  27  Fed.  541. 


276  INHERITANCE  TAXATION. 

nor  was  it  expressly  charged  with  the  payment  of  any 
legacy.  The  sale  was  for  the  purpose  of  marshaling 
assets  to  pay  debts,  expenses  of  the  estate,  and  dis- 
tribution of  legacies  according  to  the  terms  of  the  will. 
"It  is  true,"  said  the  court,  "that  section  224  of  the 
tax  law  provides  that  every  such  tax  shall  be  a  lien 
upon  the  property  transferred  until  paid,  and  makes 
both  the  person  to  whom  the  property  is  transferred 
and  the  executor  or  administrator  or  trustee  through 
whose  hands  it  comes  personally  liable  for  its  pay- 
ment. The  legislature  could  not  have  intended  by  this 
language  to  make  the  transfer  tax  a  lien  upon  the  spe- 
cific property  of  the  decedent  which  would  come  to  the 
hands  of  the  executor  or  administrator  for  administra- 
tion. Manifestly  the  lien  provided  by  this  section  at- 
taches only  to  the  fund  to  be  distributed,  or  the  par- 
ticular property  when  it  passes  by  specific  bequest  or 
devise.  The  legislature  must  have  realized  that  it  was 
necessary  for  executors  and  administrators  to  marshal 
the  assets  of  their  estates  for  the  purpose  of  paying 
debts  and  expenses,  and  to  obtain  funds  for  the  pay- 
ment of  legacies.  If  a  lien  were  to  attach  on  prop- 
erty as  it  came  to  their  hands,  it  would  be  impressed 
upon  personalty  as  well  as  realty,  and  it  would  be 
impossible  for  them  to  sell  bonds  or  stocks  or  per- 
sonal property  free  of  lien,  as  well  as  to  transfer  any 
real  property  directed  by  the  will  to  be  converted  into 
personalty.  An  intent  thus  to  hamper  the  marshaling 
of  the  assets  of  the  estate  cannot  be  inferred. 

"The  statute  is  amply  satisfied  in  view  of  the  fact 
that  the  tax  is  upon  the  right  to  succession,  and  not 
upon  the  property  of  the  decedent,  by  holding  that  the 
lien  attaches  upon  the  fund  realized  after  the  assets 
of  the  estate  have  been  marshaled  or  the  property  is 
ready  for  distribution  in  kind.  This  interpretation 
is  borne  out  by  other  provisions  of  the  section,  which 
direct  an  executor  or  administrator  to  deduct  the  tax 


LIEN   OP    TAX.  277 

from  the  legacy  or  distributive  share  and  to  pay  it, 
and  permit  him,  where  the  legacy  is  specific,  to  collect 
the  tax  upon  its  appraised  value  from  the  legatee,  and 
exempt  him  from  liability  to  deliver  any  specific  legacy 
until  he  shall  have  collected  such  tax  thereon.  Dif- 
ferent rates  of  taxation  are  prescribed  for  different 
classes  of  legatees  and  distributees,  and  it  would  be 
impossible  to  apportion  the  different  taxes  upon  the 
different  kinds  of  property,  and  manifestly  unjust  to 
fasten  a  lien  for  all  the  tax  upon  any  one  piece  or  kind 
of  property. 

"This  view  is  not  weakened  by  the  other  provision 
of  the  section  giving  .to  the  executor,  administrator, 
or  trustee  full  power  to  sell  so  much  of  the  property 
of  the  decedent  as  will  enable  him  to  pay  such  tax  in 
the  same  manner  as  he  might  be  entitled  to  sell  for  the 
payment  of  debts.  Instances  often  arise  where  the 
testator  directs  that  the  general  legacies  be  paid  in 
securities,  or  that  the  residue  of  the  estate  be  turned 
over  in  kind  to  the  residuary  legatee.  In  such  case 
the  lien  attaches  to  the  transfer,  and,  if  the  legatee 
does  not  advance  the  money  to  pay  the  tax,  the  execu- 
tor may  sell  such  securities  as  shall  be  necessary  to  do 
so.  Our  conclusion  is  that  neither  the  wh,ole  nor  any 
part  of  the  transfer  tax  which  the  law  imposed  upon 
the  various  legatees  under  the  will  was  a  lien  upon 
the  real  property  contracted  to  be  sold. ' ' 2 

In  another  recent  New  York  case  the  estate  of  the 
testator  consisted  in  part  of  several  farms.  By  his  will 
he  gave  the  real  property  to  his  widow  for  life,  and 
the  remainder  to  his  brothers  and  sisters,  share  and 
share  alike,  with  the  provision  that  if  any  of  them 
died  without  issue,  the  surviving  brothers  and  sisters 
should  take  their  shares.  One  of  the  sisters  died,  leav- 
ing a  surviving  child.  It  was  decided  that  the  entire 
property  was  subject  to  a  lien  for  the  payment  of  the 

»  Brown  v.  Lawrence,  133  App.  Div.  753,  118  N.  Y.  Supp.  132. 


278  INHERITANCE  TAXATION. 

whole  inheritance  tax,  and  that,  if  there  was  no  money 
forthcoming  to  pay  the  whole  tax,  it  was  the  duty 
of  the  executor  to  pay  the  same,  and  the  court  would 
direct  the  sale  of  so  much  of  the  whole  of  the  prop- 
erty as  necessary  to  make  the  payment.* 

§  217.  Priority  of  Liens.— The  lien  of  the  inherit- 
ance tax  is  not  paramount  to  the  lien  of  a  mortgage 
on  real  estate  which  was  in  existence  at  the  time  of 
the  decease  of  the  mortgagor.  The  rights  of  the 
mortgagee  are  not  impaired  by  subsequent  devolutions 
of  title  and  the  creation  of  liens  as  a  consequence 
thereof.  The  inheritance  tax  is  not  to  be  likened  to 
the  general  taxes  which  are  imposed  by  public  au- 
thority, and  which  attach  to  the  property  as  a  whole, 
without  regard  to  particular  estates  or  interests 
therein.  In  such  cases  the  rights  of  the  state  are  al- 
ways paramount.  It  is  not  concerned  with  the  par- 
ticular estates  or  liens  that  affect  the  property,  but, 
dealing  with  it  as  a  whole,  imposes  the  tax,  and. leaves 
it  to  the  parties  interested  in  the  property  to  secure, 
as  between  themselves,  such  an  adjustment  as  the  cir- 
cumstances may  seem  to  require.  Different  conditions 
surround  the  inheritance  tax.  It  is  imposed  upon  the 
right  to  succession,  and  is  levied  upon  successors  in 
respect  to  the  shares  to  which  they  succeed.  It  cannot, 
therefore,  be  deemed  to  affect  the  interest  of  one  who 
has  a  lien  upon  the  property  paramount  to  the  owner- 
ship of  the  mortgagor  and  superior  to  any  estate  or 
interest  which  he  might  assume  to  create  by  will. 
Hence  the  only  property  or  estate  which  becomes  sub- 
ject to  the  lien  of  the  inheritance  tax  is  the  equity 
of  redemption.  But  if  the  entire  property  is  sold  in 
proceedings  to  foreclose  the  mortgage,  the  liability 
to  the  estate  for  the  unpaid  tax  still  persists  and  ren- 
ders the  title  unmarketable.4 

»  Estate  of  Wilcox,  118  N.  Y.  Supp.  254. 

*  Kitching  v.  Shear,  26  Misc.  Rep.  436,  57  N.  Y.  Supp.  464. 


LIEN   OP   TAX.  279 

§  218.  Judicial  Sale  or  Equitable  Conversion  of 
Property. — A  few  other  decisions,  in  addition  to  the 
one  mentioned  in  the  preceding  paragraph,  have  been 
made  relative  to  the  effect,  on  the  lien  of  the  inherit- 
ance tax,  of  a  judicial  sale  of  the  property.  In  one 
instance  it  is  affirmed  that  in  case  the  proceeds  of  real 
estate,  which  has  been  sold  by  the  executor,  are  in 
court,  or  will  be  paid  into  court,  and  in  any  event 
will  be  subject  to  the  order  of  the  court,  the  lien  of 
the  inheritance  tax  does  not  render  the  title  of  the 
property  defective,  for  the  court,  with  the  entire  estate 
under  its  control,  can  make  such  orders  as  are  neces- 
sary to  satisfy  any  claim  of  the  state  for  taxes,  inherit- 
ance or  otherwise.' 

In  another  instance  the  decedent  owned  an  undivided 
one-third  in  real  estate,  and  by  his  death  a  collateral 
inheritance  tax  accrued  to  the  commonwealth  by  the 
devolution  of  his  interest  to  his  collateral  heirs,  his 
cotenants.  After  his  decease  they  had  partition  of 
the  property.  The  part  allotted  to  one  of  them  was 
sold,  on  a  judgment  against  him,  by  the  sheriff,  and  a 
sum  realized  therefrom  in  excess  of  the  amount  requi- 
site to  pay  all  of  the  tax  upon  all  of  the  real  estate. 
The  commonwealth  made  no  claim  for  the  tax  on  the 
fund  at  distribution,  and  it  was  distributed  to  other 
liens.  It  was  held  that  the  partition  did  not  have  the 
effect  of  apportioning  the  lien  of  the  tax,  and  the 
lien  of  the  whole  tax  upon  the  entire  estate  was  de- 
vested  by  the  sheriff's  sale.8 

It  has  been  adjudged  in  Pennsylvania  that  when  a 
will  converts  real  estate  into  personalty,  the  lien  of  the 
collateral  inheritance  tax  is  shifted  to  the  fund  which 
the  conversion  produces.7 

•  Mandel  T.  Fidelity  Trust  Co.,  128  Ky.  239,  107  S.  W.  775. 
«  Appeal  of  Mellon,  114  Pa.  564,  8  Atl.  183. 
»  Estate  of  Brown,  5  Fa.  Dist.  Rep.  286. 


280  INHERITANCE  TAXATION. 


CHAPTER  XV. 

RATES  OF  TAX. 

§  225.  As  Determined  by  Value   of  Property. 

§  226.  As    Determined   by   Belationship   of   Parties. 

§  227.  In  Case  of  Exercise  of  Power  of  Appointment. 

§  228.  In  Case  of  Assignment  of  Legacy. 

§  229.  Law   Governing  in.  Case  of   Change  in   Statute. 

§  225.  As  Determined  by  Value  of  Property. — At- 
tention has  already  been  called  to  the  general  features 
of  the  progressive  theory  of  inheritance  taxation, 
whereby  the  tax  rate  is  made  to  increase  with  the  value 
of  the  property  transmitted.1  According  to  the  Cali- 
fornia statute  of  1905,  where  the  property  does  not 
exceed  in  value  twenty-five  thousand  dollars,  certain 
rates  are  prescribed,  varying  with  the  relationship 
of  the  parties,  which  are  called  the  primary  rates ;  then 
upon  all  in  excess  of  twenty-five  thousand  dollars  and 
up  to  fifty  thousand  dollars,  the  rates  are  one  and  one- 
half  times  the  primary  rates;  upon  all  in  excess  of 
fifty  thousand  dollars  and  up  to  one  hundred  thousand 
dollars,  two  times  the  primary  rates;  upon  all  in  ex- 
cess of  one  hundred  thousand  dollars  and  up  to  five 
hundred  thousand  dollars,  two  and  one-half  times  the 
primary  rates;  and  upon  all  in  excess  of  five  hundred 
thousand  dollars,  three  times  the  primary  rates. 

Under  this  statute  the  entire  amount  of  a  distribu- 
tive share,  including  the  exemption,  is  considered  for 
the  purpose  of  fixing  the  rates  of  taxation.  And  in 
computing  the  tax  the  amount  of  the  exemption  should 
not  be  deducted  from  the  value  of  the  distributive 
share  as  a  whole,  but  should  be  deducted  from  the 
first  twenty-five  thousand  dollars  of  value  thereof  to 
which  the  primary  rates  are  applied.  Thus,  if  the 

i  See  sec.  26,  ante. 


RATES    OF    TAX.  281 

value  of  the  distributive  share  passing  to  a  child  is 
sixty-three  thousand  dollars,  the  exemption  of  four 
thousand  dollars  should  be  deducted  from  the  first 
twenty-five  thousand  dollars  thereof,  and  a  tax  im- 
posed at  the  primary  rate  of  one  per  cent;  on  the  next 
twenty-five  thousand  dollars  the  tax  should  be  im- 
posed at  the  rate  of  one  and  one-half  per  cent,  and  on 
the  residue  of  the  share  at  the  rate  of  two  per  cent.2 

The  primary  rates,  prescribed  by  the  California  stat- 
ute, are  to  be  charged  in  all  cases,  whether  the  prop- 
erty is  less  than  or  exceeds  twenty-five  thousand  dol- 
lars in  value.  If  the  property  is  of  greater  value  than 
twenty-five  thousand  dollars,  the  primary  rates  im- 
posed on  the  first  twenty-five  thousand  dollars  are 
computed,  and  the  higher  rates  upon  the  excess  over 
that  sum.3 

The  South  Dakota  statute  provides  that  the  higher 
rates  shall  be  levied  upon  the  entire  value  of  the  prop- 
erty transmitted,  not  merely  on  the  excess  over  the 
amount  subject  to  the  next  lower  rate.  This  statute 
has  recently  been  upheld  as  free  from  constitutional 
objections.4 

In  Minnesota  the  rate  of  taxation  does  not  increase 
until  the  value  of  the  inheritance,  exclusive  of  the  ex- 
emption, reaches  the  larger  values  named  in  the  statute. 
The  taxes  must  be  computed  in  all  cases  upon  the 
true  value  of  the  inheritance  above  an  exemption  of 
ten  thousand  dollars.  When  such  valuation  is  less 
than  fifty  thousand  dollars,  the  rate  thereon  is  one  and 
one-half  per  cent;  when  such  valuation  is  fifty  thousand 
dollars  or  over,  and  less  than  one  hundred  thousand 
dollars,  the  rate  is  three  per  cent ;  and  when  such  valua- 
tion is  one  hundred  thousand  dollars  or  over,  the  rate 
is  five  per  cent.  In  no  event  will  the  rate  of  taxa- 

*  Estate  of  Timken,  158  Cal.  51,  109  Pac.  608. 

*  Estate  of  Bull,  153  Cal.  715,  96  Pac.  366. 

*  Estate  of  McKennan  (S.  D.),  130  N.  W.  33. 


282  INHERITANCE  TAXATION. 

tion  be  increased  to  three  per  cent  until  the  value  of 
the  right  acquired  by  the  beneficiary  exceeds,  exclu- 
sive of  the  exemption,  fifty  thousand  dollars;  and  in 
like  manner  the  rate  cannot  be  increased  to  five  per 
cent  until  such  value,  exclusive  of  the  exemption,  ex- 
ceeds one  hundred  thousand  dollars.8 
•  t 

The  New  York  transfer  tax  statute  of  1887  contained 
the  proviso  *  *  that  an  estate  which  may  be  valued  at  a 
less  sum  than  five  hundred  dollars  shall  not  be  sub- 
ject to  such  duty  or  tax."  It  was  contended  that 
under  this  provision  every  person  receiving  a  testa- 
mentary gift  or  a  distributive  share  in  an  estate  could 
claim  an  exemption  of  five  hundred  dollars ;  if  his  gift 
or  share  was  less  than  five  hundred  dollars,  the  whole 
amount  was  exempt,  and  if  his  gift  or  share  exceeded 
five  hundred  dollars,  then  five  hundred  dollars  was  to 
be  deducted  therefrom  as  an  exemption.  But  the 
court  of  appeals  reached  the  conclusion  that  when  the 
inheritance  or  testamentary  gift  exceeded  five  hundred 
dollars,  it  was  subject  to  be  taxed  for  its  full  amount ; 
but  that  when  its  value  was  less  than  that  sum,  no 
tax  at  all  was  to  be  collected.6 

This  doctrine  should  be  considered  with  the  New 
York  decisions  referred  to  in  sections  133  and  134,  ante. 
It  has  recently  been  reaffirmed  by  the  supreme  court 
in  construing  section  221  of  the  act  of  1910,  and  hold- 
ing that  a  legacy  of  over  five  hundred  dollars  to  an 
adult  child  of  the  testator  is  taxable  at  one  per  cent 
on  the  entire  amount  of  the  legacy,  not  on  merely  the 
excess  over  and  above  five  hundred  dollars,  but  that 
a  legacy  to  such  child  of  less  value  than  five  hundred 
dollars  passes  exempt  from  taxation/ 

«  State  v.  Probate  Court,  'ill  Minn.  297,  126  N.  W.   107Q;   State 
v.  Probate  Court,  112  Minn.  279,  128  N.  W.  18. 
«  Estate  of  Sherwell,  125  N.  Y.  376,  26  N.  E.  464. 
i  Estate  of  Mason,  69  Misc.  Eep.  2SO,  126  N.  Y.  Supp.  998. 


BATES   OP   TAX.  283 

Where  property  outside  of  the  state,  belonging  to 
a  nonresident  decedent,  has  been  used  by  the  executor 
in  the  exercise  of  his  right  of  election  to  pay  pecuniary 
legacies,  and  it  has  proved  sufficient  for  that  purpose, 
and  all  the  property  within  the  state  passes  to  a  re- 
siduary legatee  who  belongs  to  the  class  taxable  at 
one  per  cent,  the  tax  at  that  rate  must  be  imposed  upon 
the  personalty  passing  to  him.8 

Under  the  federal  war  revenue  act  of  1898,  the 
amount  of  each  particular  legacy  or  distributive  share, 
not  the  whole  personal  estate  of  a  decedent,  is  the 
amount  on  which  the  progressive  rate  is  imposed ;  * 
and  this,  it  is  believed,  is  the  rule  generally  applied 
in  construing  the  statutes  of  the  various  states.10 

§  226.  As  Determined  by  Relationship  of  Parties. — 
In  the  taxation  of  inheritances  it  is  customary,  when 
lineal  descendants  and  the  surviving  husband  or  wife 
are  taxed  at  all,  to  impose  upon  them  a  lower  rate 
than  upon  strangers  and  collateral  relatives.  There- 
fore, the  degree  of  relationship,  or  the  absence  of  re- 
lationship, between  donor  and  donee  becomes  an  im- 
portant matter  in  computing  inheritance  taxes.  In 
this  connection  reference  should  be  made  to  the  pre- 
ceding section.  The  general  features  of  this  subject, 
and  the  constitutional  attacks  upon  them,  have  been 
considered  in  previous  chapters.11 

"Where  the  widow  and  next  of  kin,  if  any,  of  a  de- 
cedent are  unknown,  the  presumption  is  that  he  has 
left  next  of  kin  but  not  a  widow  or  descendants. 
Therefore,  it  is  presumed  that  his  property  vested  in 
the  next  of  kin,  and  it  is  taxable  accordingly.  The 

«  Estate  of  Whiting,  69  Misc.  Rep.  526,  127  N.  Y.  Supp.  960, 
affirmed,  139  App.  Div.  905,  124  N.  Y.  Supp.  1134. 

»  Knowlton  v.  Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20  Sup.  Ct. 
Eep.  747. 

10  See  cases  previously  cited  under  this  chapter;  also  sec.  205,  ante. 

11  See  sees.  10,  21,  ante. 


284  INHERITANCE  TAXATION. 

transfer  is  not  "  dependent  upon  contingencies  or  con- 
ditions whereby  they  [the  interests]  may  be  wholly  or 
in  part  created,  defeated,  extended  or  abridged. ' '  " 

§  227.  In  Case  of  Exercise  of  Power  of  Appoint- 
ment.— The  relationship  of  the  parties,  which  deter- 
mines the  rate  of  taxation  or  whether  any  tax  at  all 
can  be  assessed,  in  case  of  an  exercise  of  a  power  of 
appointment,  is  the  relationship  existing  between  the 
donee  of  the  power  and  the  appointees.  This  neces- 
sarily follows  from  the  rule  that  the  donee  is  regarded, 
for  purposes  of  inheritance  taxation,  as  devising  to 
the  appointees  property  of  which  he  is  the  absolute 
owner,  and  that  it  is  his  exercise  of  the  power,  not  the 
creation  of  the  power,  which  effects  the  taxable  trans- 
fer.18 

§  228.    In  Case  of  Assignment  of  Legacy. — In  the 

event  of  a  legatee  assigning  his  legacy,  the  inheritance 
tax  is  measured  by  the  legal  relation  which  the  legatee 
bears  to  the  testator ;  it  is  not  affected  by  the  relation 
which  the  assignee  of  the  legatee  bears  to  him.14 

§  229.  Law  Governing  in  Case  of  Change  of  Stat- 
ute.— The  rate  of  inheritance  taxation,  and  hence  the 
amount  of  the  tax  to  be  paid  by  those  succeeding  to 
the  estate  of  a  decedent,  is  determined,  in  the  event  of 
a  change  in  the  law,  by  the  statute  in  force  at  the  time 
of  his  death.16  But  the  method  of  procedure  for  the 
determination  and  enforcement  of  the  tax  is  governed 
by  the  statute  in  force  at  the  time  of  the  institution 
of  the  proceeding.16 

12  Estate  of  Lind,  132  App.  Dir.  321,  117  N.  Y.  Supp.  49,  affirmed, 
196  N.  Y.  570,  90  N.  E.  1161. 
is  See  sec.  85,  ante. 
i*  See  sec.  211,  ante. 

«  Estate  of  Woodard,  153  Cal.  39,  94  Pac.  242. 
"  Estate  of  Davis,  149  N.  Y.  539,  44  N.  E.  185. 


JURISDICTION  OF  COURTS.  285 


CHAPTER  XVI. 

JURISDICTION  OF  COURTS. 

§  235.  Of  Probate  Courts,  in  General. 

§  236.  In   Case  of  Powers   of   Appointment. 

§  237.  In   Construction   of   Wills. 

§  238.  In   Determining  Taxability  and  Value  of  Property. 

§  239.  In   Issuing   Commission   to   Take   Testimony. 

§  240.  In  Ordering  Production  of  Corporate  Books  and  Papers. 

§  241.  Exclusiveness  of  Probate  Court's  Jurisdiction. 

§  242.  Constitutional  Objection  to  Nonjudicial  Functions. 

i 

§  235.  Of  Probate  Courts,  in  General. — Proceed- 
ings in  the  matter  of  inheritance  taxation  are  usually 
under  the  control  of  those  courts  which  exercise  pro- 
bate jurisdiction,  and  that  court  has  jurisdiction  in 
any  particular  case  which  has  jurisdiction  of  the  ad- 
ministration of  the  estate  of  the  decedent.  In  the 
event  that  two  or  more  courts  have  jurisdiction,  the 
one  first  acquiring  jurisdiction  retains  it  to  the  ex- 
clusion of  every  other.1 

The  New  York  court  of  appeals,  after  quoting  the 
fifteenth  section  of  the  act  of  1885  which  reads,  "The 
surrogate's  court  shall  have  jurisdiction  to  hear  and 
determine  all  questions  in  relation  to  the  tax  arising 
under  the  provisions  of  this  act,"  said:  "Aside  from 
the  ordinary  jurisdiction  of  the  surrogate,  this  is  a 
special  grant  of  power  in  broad  and  comprehensive 
language ;  and  there  can  be  no  good  reason  for  hamper- 
ing the  power  thus  conferred  by  any  construction  thar 

i  Dixon  v.  Eussell,  78  N.  J.  L.  57,  73  Atl.  51;  Estate  of  Wolfe, 
137  N.  Y.  205,  33  N.  E.  156;  Estate  of  Hathaway,  27  Misc.  Eep.  474, 
59  N.  Y.  Supp.  166;  Estate  of  Keenan,  1  Con.  266,  5  N.  Y.  Supp. 
200;  Estate  of  Arnold,  114  App.  Div.  244,  99  N.  Y.  Supp.  740. 

The  Connecticut  statute  contains  no  direction  as  to  who  shall 
compute  the  inheritance  tax  or  the  manner  of  computation;  but  by 
necessary  implication  the  duty  of  computation  is  placed  upon  the 
court  of  probate:  Appeal  of  Hopkins,  77  Conn.  644,  60  Atl.  657. 


286  INHERITANCE  TAXATION. 

would  take  from  him  authority  to  decide  every  ques- 
tion that  may  arise  in  the  proceedings  before  him 
which  may  be  necessary  in  order  fully  to  discharge 
the  duties  imposed  upon  him  by  the  act.  Every  offi- 
cer charged  with  the  duty  of  executing  a  taxing  power, 
whether  it  be  a  surrogate  or  a  town  assessor,  must 
necessarily  decide,  in  a  judicial  capacity,  important 
questions  of  law,  in  order  to  perform  the  duties  of  his 
office."2 

It  has  been  said  that  the  New  York  transfer  tax 
act  of  1892  and  the  provisions  of  the  Code  of  Civil 
Procedure  for  the  granting  of  letters  upon  the  estate 
of  a  decedent  should  be  read  together;  and  that  what 
is  held  to  be  property,  within  the  meaning  of  that 
portion  of  the  statute  providing  that  a  tax  shall  be 
imposed  upon  its  transfer,  is  also  property  for  the 
purpose  of  conferring  upon  the  surrogate's  court 
jurisdiction  to  impose  the  tax.  It  has  been  decided, 
further,  that  shares  of  stock  in  a  corporation  of  that 
state,  held  by  a  nonresident  testator  who  died  without 
the  state,  and  taxable  under  the  transfer  tax  law  as 
"property  within  the  state,"  are,  within  the  meaning 
of  subdivision  3  of  section  2476  of  the  Code  of  Civil 
Procedure,  "property  within  that  county"  where  the 
corporate  property  is,  and  the  surrogate's  court  of 
that  county  has,  by  force  of  the  provisions  of  the  trans- 
fer act,  jurisdiction  to  impose  the  tax.  The  code  sec- 
tion here  referred  to  is  the  one  which  prescribes  the 
jurisdiction  of  the  probate  court  to  grant  letters  tes- 
tamentary or  of  administration.8 

a  Estate  of  TJllmann,  137  N.  Y.  403,  33  N.  E.  480. 

»  Estate  of  Fitch,  160  N.  Y.  87,  54  N.  E.  701. 

That  the  county  court  in  Kentucky  has  no  jurisdiction  to  impose 
a  tax  where  a  nonresident  decedent  leaves  money  in  a  domestic  bank 
or  stock  in  a  domestic  corporation,  but  leaves  no  real  property  in 
the  state,  see  Commonwealth  v.  Stump,  146  Ky.  132,  142  S.  W.  393; 
Commonwealth  v.  Cumberland  Tel.  &  Tel.  Co.,  146  Ky.  142,  142  S. 
W.  392. 


JURISDICTION  OF  COURTS.  287 

According  to  a  decision  of  the  supreme  court  of 
New  York,  where  the  executors  of  a  nonresident  tes- 
tator present  their  accounts,  make  distribution,  and 
obtain  their  discharge  at  the  court  of  the  domicile  of 
the  decedent,  jurisdiction  of  the  surrogate  of  a  county 
in  New  York,  where  personal  property  of  the  decedent 
was  situated  at  the  time  of  his  death,  to  appoint  an 
appraiser  and  fix  the  inheritance  tax,  is  not  lost.4 

In  Massachusetts  the  probate  court  having  jurisdic- 
tion of  the  settlement  of  the  estate  of  a  decedent  has 
jurisdiction,  upon  a  petition  filed  by  the  treasurer  and 
receiver  general  of  the  commonwealth,  to  determine, 
subject  to  appeal,  whether  an  inheritance  tax  is  pay- 
able, and  if  payable  the  amount  thereof.5  The  probate 
court  has  jurisdiction,  also,  of  a  petition  by  the  exec- 
utor of  a  foreign  will,  proved  in  Massachusetts,  for 
instructions  upon  the  question  whether  he  is  liable 
for  an  inheritance  tax  on  the  real  property  of  his 
decedent  found  within  the  state.8 

§  236.  In  Case  of  Powers  of  Appointment. — This 
question  of  jurisdiction,  as  dependent  upon  the  resi- 
dence of  the  decedent  or  the  location  of  his  property, 
has  arisen  in  a  few  instances  in  taxing  transfers  under 
powers  of  appointment.  As  has  been  seen  in  a  previ- 
ous chapter,  it  is  generally  conceded  that  it  is  the  exer- 
cise, not  the  creation,  of  a  power  of  appointment  which 
effects  the  transfer  of  the  property  against  which  the 
inheritance  tax  is  enforceable.  Hence  the  surrogate 
of  the  county  in  which  the  donee  of  the  power  resided 
at  the  time  of  his  death,  and  in  which  his  will  is  pro- 
bated, rather  than  the  surrogate  of  the  county  in  which 
the  creator  of  the  power  resided,  has  jurisdiction  to 
determine  whether  the  transfer  is  taxable.  Where  the 

*  Estate  of  Hubbard,  21  Misc.  Bep.  566,  48  N.  Y.  Supp.  869. 
e  Bradford  v.  Storey,  189  Mass.  104,  ,75  N.  E.  256. 

•  Callahan  v.  Woodbridge,  171  Mass.  595,  51  N.  E.  176. 


288  INHERITANCE  TAXATION. 

donee  of  a  power,  who  is  a  nonresident  of  the  state, 
exercises  the  power  in  connection  with  real  property 
in  the  state,  the  surrogate  court  in  the  county  where 
the  land  is  situated  has  jurisdiction  to  assess  the  tax/ 

§  237.  In  Construction  of  Wills. — In  inheritance 
tax  proceedings  in  New  York,  the  surrogate  is  clothed 
with  authority  to  examine  a  will,  pass  upon  the  valid- 
ity of  its  dispositions,  and  determine  the  ultimate  dev- 
olution of  the  property.  Thus  where  a  testator 
attempted  to  create  certain  trusts  for  the  disposition 
of  the  residuary  estate,  which  trusts  were  ineffectual 
because  in  contravention  of  the  rule  against  perpetu- 
ities, and  were  so  conceded  by  all  parties  in  interest, 
and  the  beneficiaries  under  the  residuary  clause 
abandoned  all  claim  to  real  property  embraced  therein 
to  the  heirs,  who  sold,  and  out  of  the  proceeds  made 
provisions  for  the  payment  of  the  tax  in  case  they 
were  liable  for  its  payment,  it  was  decided  that  the 
surrogate  had  jurisdiction  to  determine  that  the  residu- 
ary estate  did  not  pass  to  the  legatees  or  devisees,  but 
to  the  heirs  and  next  of  kin,  and  that  a  decree  assessing 
the  heirs  for  that  portion  of  the  estate  which  passed 
to  them  was  valid.8  Said  the  court:  "The  surrogate 
must  decide  whether  any  property  of  a  deceased  per- 
son has  passed  to  another  under  a  will  or  under  the 
laws  of  intestacy  before  he  can  perform  a  duty  imposed 
upon  him.  It  may  sometimes  happen  that  the  prop- 
erty of  the  deceased  passes  in  both  ways.  The  fact 
that  there  is  a  will,  and  that  it  has  been  admitted  to 
probate,  does  not  necessarily  determine  the  ownership 
or  the  transmission  of  the  property.  When  the  sur- 

t  Sec.  84,  ante. 

«  Estate  of  UHmann,  137  N.  Y.  403,  33  N.  E.  480.  This  case  is 
cited  in  Estate  of  Peters,  69  App.  Div.  465,  74  N.  Y.  Supp.  1028,  to 
the  effect  that  the  court  has  jurisdiction  to  construe  the  testator's 
will  in  inheritance  tax  proceedings. 


JURISDICTION  OF  COURTS.  289 

rogate  looks  into  the  will,  some  of  its  dispositions  may 
be  so  clearly  void  as  to  warrant  him  in  holding  that 
nothing  has  passed  by  virtue  of  them,  but  that  the 
property  embraced  therein  has  passed  to  heirs  or  next 
of  kin  under  the  statutes  of  descent  or  distribution. 
In  the  numerous  cases  that  have  been  passed  upon  by 
this  court  recently,  arising  under  this  statute,  we  have 
held  that  the  surrogate  was  clothed  with  power,  and 
that  it  was  his  duty  to  decide  questions  arising  under 
wills  or  under  the  statutes  quite  as  intricate  and  im- 
portant as  that  arising  out  of  the  residuary  clause  of 
the  will  in  this  case.  In  the  settlement  of  the  accounts 
of  executors  and  the  distribution  of  the  personal  es- 
tate under  a  will,  the  surrogate  is  empowered  to  deter- 
mine the  validity  of  testamentary  provisions  under 
statutes  that  are  not  more  explicit  or  comprehensive 
than  the  one  now  under  consideration."  The  statute 
here  alluded  to  is  this:  ''The  surrogate's  court  in  the 
county  of  which  the  decedent  was  a  resident  at  the  time 
of  his  death  shall  have  jurisdiction  to  hear  and  deter- 
mine all  questions  in  relation  to  the  facts  arising  under 
the  provisions  of  this  act." 

§  238.  In  Determining  Taxability  and  Value  of 
Property. — The  New  York  transfer  tax  act  of  1885 
makes  the  surrogate  the  assessing  and  taxing  officer, 
and,  as  such,  the  representative  of  the  state  for  pur- 
poses relating  to  the  appraisement  and  taxation  of 
property.  To  adopt  the  language  of  Justice  Gray:  "I 
think  it  is  very  clear  that  the  legislature  has  provided 
that  the  surrogate  might  proceed  with  the  assessment 

of  the  tax  without  notice  to  any  state  official 

When  we  read  all  of  the  provisions  of  this  act,  it  is 
perfectly  apparent  that  a  special  system  of  taxation 
was  created  for  the  benefit  of  the  state,  with  all  the 
necessary  machinery  for  its  working ;  the  control  with 
respect  to  which  was  vested  in  the  surrogate's  court, 

19 


290  INHERITANCE  TAXATION. 

with  a  jurisdiction  exclusive  in  its  nature.  In  the  as- 
sessment of  a  tax  upon  property  passing  by  will,  or  by 
the  intestate  law,  the  responsibility  is  imposed  by  the 
law  upon  the  surrogate.  He  acts  for  the  state  and  he 
is  commanded  to  assess  and  fix  the  tax  to  which  the 
property  is  liable.  To  comply  with  the  command  in 
section  13  of  the  act,  in  that  respect,  he  must,  neces- 
sarily, determine  the  question  of  liability  to  taxation, 
inasmuch  as,  if  no  such  liability  exists,  he  is  without 
jurisdiction  in  the  matter.  When  the  machinery  of 
this  system  of  taxation  is  set  in  motion,  under  section 
13  of  the  act,  whether  upon  the  application  of  inter- 
ested parties,  or  upon  his  own  motion,  the  surrogate, 
by  force  of  its  provision,  is  at  once  invested  with  the 
office  and  the  functions  of  an  assessor  for  the  state, 
whose  duty  it  is  to  assess  for  its  use  a  tax;  and  in 
whom,  not  only  by  virtue  of  the  office,  but  by  the  fur- 
ther provision  of  section  15,  inheres  the  authority,  and 
upon  whom  rests  the  obligation,  to  determine  the 
question  of  whether  the  property  of  the  decedent, 
which  passes  to  others,  is  subject  or  liable  to  taxation 
by  the  state.  He  must  decide  whether  the  property  is 
taxable,  for  that  fact  lies  at  the  foundation  of  his  juris- 
diction and  is  of  the  essence  of  his  right  to  proceed  with 
the  assessment. ' ' 8 

In  Minnesota  the  probate  court,  when  assigning  an 
estate  to  trustees  for  the  beneficial  use  of  another,  has 
no  power  to  find  what  taxes  will  accrue  in  the  future.10 

§  239.  In  Issuing  Commission  to  Take  Testimony. 
The  New  York  transfer  tax  statute  of  1896  contains  the 
provision  that  surrogate  courts  of  every  county  of  the 
state  * '  shall  have  jurisdiction  to  hear  and  determine  all 

»  Estate  of  Wolfe,  137  N.  Y.  205,  33  N.  E.  156.  But  see  the  com- 
ment on  this  case  in  State  v.  Carpenter,  129  Wis.  180,  8  L.  E.  A., 
N.  S.,  788,  104  N.  W.  641. 

10  State  v.  Probate  Court,  112  Minn.  279,  128  N.  W.  18. 


JURISDICTION  OP  COURTS.  291 

questions  arising  under  the  provisions  of  this  article, 
and  do  any  act  in  relation  thereto  authorized  by  law 
to  be  done  by  a  surrogate  in  other  matters  or  proceed- 
ings coming  within  its  jurisdiction."  Under  this  stat- 
utory provision  the  surrogate  court  has  power  to  issue 
a  commission  to  take  the  testimony  of  foreign  witnesses 
in  proceedings  instituted  under  the  transfer  tax  law.11 

§  240.  In  Ordering  Production  of  Corporate  Books 
and  Papers. — But  the  supreme  court  of  Wisconsin  has 
come  to  the  conclusion  that  no  authority  to  compel  a 
private  corporation,  in  which  a  decedent  held  stock,  to 
produce  its  books  and  papers,  is  conferred  upon  the 
county  court,  whether  acting  as  an  appraiser  or  as  a 
judicial  tribunal,  by  a  statute  authorizing  it  to  appraise 
decedents'  estates  for  the  purpose  of  fixing  the  inher- 
itance tax,  and  for  that  purpose  to  compel  the  attend- 
ance of  witnesses,  and  the  taking  of  their  testimony 
under  oath.12 

§  241.  Exclusiveness  of  Probate  Court's  Jurisdic- 
tion.— The  Massachusetts  statute  of  1891,  giving  the 
probate  court  jurisdiction  to  hear  and  determine  all 
questions  in  relation  to  the  inheritance  tax  that  may 
arise  affecting  any  devise,  legacy,  or  inheritance  under 
the  act,  is  not  exclusive,  and  does  not  take  away  the 
right  of  a  legatee  to  sue  at  common  law  in  the  superior 
court  and  there  have  the  question  determined  whether 
his  legacy  is  subject  to  the  tax.13 

Likewise,  the  Kentucky  statute  of  1906,  in  conferring 
power  on  the  county  court  to  hear  and  determine  ques- 
tions arising  in  relation  to  the  inheritance  tax,  does  not 
confer  exclusive  jurisdiction.  When  the  jurisdiction 

«  In  re  Wallace,  71  App.  Div.  284,  75  N.  Y.  Supp.  838. 
12  State  v.  Carpenter,   129  Wis.   180,  8  L.  R.  A.,   N.   S.,  788,  104 
N.  W.  641. 

is  Town  of  Essex  v.  Brooks,  164  Mass.  79,  41  N.  E.  119. 


293  INHERITANCE  TAXATION. 

of  a  court  of  equity  is  invoked  to  distribute  an  estate, 
and  the  interest  of  each  or  any  number  of  the  heirs  at 
law  is  subject  to  the  inheritance  or  other  tax,  the  court, 
at  the  instance  of  the  official  representative  of  the  com- 
monwealth charged  with  the  duty  of  collecting  such  tax, 
may  require  its  payment  out  of  the  share  or  shares  of 
those  chargeable  with  the  tax  before  distributing  the 
estate  or  fund  among  them,  and  thereby  save  both  the 
tax  collector  and  the  heirs  the  trouble  and  expense  of 
a  separate  and  independent  proceeding  in  the  county 
court  to  compel  the  payment  of  the  tax.14 

In  Tennessee  the  primary  jurisdiction  of  cases  in- 
volving the  collection  of  inheritance  taxes  is  in  the 
county  court,  but  the  court  of  chancery  may  entertain 
the  controversy  if  there  is  no  demurrer.15  But  the 
pendency  in  the  chancery  court  of  proceedings  for  the 
settlement  of  an  estate  does  not  deprive  the  county 
court  of  jurisdiction  to  collect  the  inheritance  tax. 
While  the  statute  does  provide  for  the  collection  and 
retention  of  the  tax  in  suits  pending  in  the  chancery 
court,  it  evidently  is  intended  as  an  additional  remedy 
to  that  which  exists  in  the  county  court,  and  its  pur- 
pose is  to  make  certain  the  collection  of  the  tax  before 
the  estate  is  distributed.18  The  county  court  has  ju- 
risdiction to  entertain  suits  by  the  clerk  thereof  to  col- 
lect taxes  under  the  statute  of  1909.1T 

Section  4  of  the  Illinois  statute  of  1895,  requiring  an 
administrator  or  executor  to  make  application  to  the 
court  having  jurisdiction  of  his  account  in  the  event  of 
questions  arising  as  to  apportionment  of  inheritance 
taxes,  does  not  oust  the  county  court  of  jurisdiction  of 

i*  Barrett  v.  Continental  Realty  Co.,  130  Ky.  109,  114  S.  W.  750. 
i»  Fidelity  &  Deposit  Co.  v.  Crenshaw,  120  Tenn.  606,  110  S.  W. 
1017. 

i«  Harrison  v.  Johnston,  109  Tenn.  245,  70  S.  W.  414. 
«  Knox  v.  Emerson,  123  Tenn.  409,  131  S.  W.  972. 


JURISDICTION  OP  COURTS.  293 

a  proceeding  to  collect  the  tax,  although  the  estate  has 
been  certified  to  the  circuit  court  for  settlement.18 

Under  the  New  York  statute  of  1892,  the  supreme 
court,  sitting  as  a  court  of  equity,  has  no  original  ju- 
risdiction to  determine  whether  a  trust  fund  is  subject 
to  the  transfer  tax.  Jurisdiction  is,  for  all  purposes 
of  fixing  the  amount  of  the  tax  in  the  first  instance, 
conferred  solely  upon  the  surrogate  and  his  court.19 

§  242.  Constitutional  Objections  to  Nonjudicial 
Functions. — The  provisions  of  a  statute  imposing  on 
the  probate  court  duties  not  strictly  judicial  in  the 
matter  of  fixing  the  value  of  property  subject  to  in- 
heritance taxation  and  collecting  the  tax  are  not  objec- 
tionable on  that  account;  these  duties  are  necessarily 
incident  to  the  settlement  of  estates,  and  not  so  foreign 
to  the  jurisdiction  of  the  surrogate  or  probate  judge  as 
to  render  their  imposition  on  him  open  to  any  con- 
stitutional objection.20 

is  Connell  v.  Crosby,  210  111.  380,  71  N.  E.  350. 

i»  Weston  v.  Goodrich,  86  Hun,  194,  33  N.  Y.  Supp.  382. 

20  Union  Trust  Co.  Y.  Durfee,  125  Mich.  487,  84  N.  W.  1101;  Estate 
of  McPherson,  104  N.  Y.  306,  58  Am.  Rep.  502,  10  N.  E.  685;  Nun- 
nemacher  v.  State,  129  Wis.  190,  9  Ann.  Cas.  711,  9  L.  B.  A.,  N.  S., 
121,  108  N.  W.  627;  Beals  v.  State,  139  Wis.  544,  121  N.  W.  347. 


294  INHERITANCE  TAXATION. 


CHAPTER  XVII. 
APPRAISEMENT,  VALUATION,  AND  ASSESSMENT. 

§  250.  Statement  of  Property  and  Persons  Liable  for  Tax. 

§  251.  Appraisers  and  Appraisement,  in  General. 

§  252.  Venue   or  Jurisdiction  of  Proceedings. 

§  253.  Law  Governing  in  Case  of  Change  in  Statute. 

§  254.  Notice  of  Proceedings — Due  Process. 

§  255.  Property   to   be  Included   in   Appraisement. 

§  256.  Valuation  of  Property,  in  General. 

§  257.  Valuation  of  Notes  and  Doubtful  or  Litigated  Claims. 

§  258.  Valuation  of  Corporate  Stock. 

§  259.  Time  of  Which  Valuation  Determined. 

§  260.  Eeport   of  Appraisers. 

§  261.  Eeappraisement  of  Property. 

§  250.  Statement  of  Property  and  Persons  Liable 
for  Tax. — To  the  end  that  the  fiscal  officers  of  the  state 
may  be  in  a  position  to  enforce  the  collection  of  inherit- 
ance taxes,  some  statutes  require  executors  or  adminis- 
trators to  file  a  statement  or  inventory  showing  the 
character  and  value  of  the  estate  and  the  names  of  the 
persons  to  whom  it  will  go  as  distributees  and  who  are 
charged  with  the  duty  of  paying  the  tax.1  The  law 
leaves  no  discretion  with  the  personal  representative 
or  the  court  in  the  matter  of  making  the  inventory ;  and 
it  is  the  duty  of  the  court,  in  any  case,  upon  attention 
being  called  to  a  failure  on  the  part  of  the  executors 
or  administrators  to  comply  with  the  law,  to  see  that 
they  perform  their  duty.  The  fact  that  the  public  may 
have  received  all  necessary  information  through  the  ex- 
amination of  witnesses  will  not  purge  of  error  the 
court's  refusal  to  order  the  inventory  to  be  made.2  If 
an  executor  is  ordered  to  have  the  property  appraised, 

i  Commonwealth  v.  Gaulbert,  134  Ky.  157,  119  S.  W.  779,  holding 
that  three  months  after  the  qualification  of  the  executor  or  ad- 
ministrator is  a  reasonable  time  within  which  to  file  the  statement. 

a  People  v.  gholem,  244  111.  502,  91  N.  E.  704. 


APPRAISEMENT,  VALUATION,  AND  ASSESSMENT.  295 

he  must  comply  with  the  order,  notwithstanding  the 
will  may  direct  him  to  make  no  returns  of  the  property.* 

Personal  property  of  a  resident  decedent,  which 
has  not  come  into  the  possession  of  the  domiciliary  ad- 
ministrator, but  has  been  distributed  through  ancillary 
administration  in  the  state  where  located,  should  be 
included  in  his  inventory.8* 

The  inventory  is  not  conclusive,  but  when  it  is 
claimed  that  any  assets  have  been  omitted,  inquiry  will 
be  confined  to  the  omitted  property.* 

§  251.  Appraisers  and  Appraisement,  in  General. — 
The  procedure  to  be  followed  in  the  appointment  of 
appraisers  and  the  determination  of  the  value  of  the 
property,  for  purposes  of  inheritance  taxation,  is 
usually  prescribed  somewhat  in  detail  by  the  various 
statutes.5  The  New  York  statute  of  1892  provides 
that  "the  surrogate,  upon  the  application  of  any  in- 
terested party,  shall,  as  often  and  whenever  occasion 
may  require,  appoint  a  competent  person  as  ap- 
praiser. ' '  Under  this  statute  the  court  of  appeals  has 
decided  that  the  power  of  a  surrogate  to  appoint  an 
appraiser  and  fix  a  transfer  tax  does  not  depend  upon 
the  prior  ascertainment  of  the  facts  as  to  claims  against 

»  Estate  of  Morris,  138  N.  C.  259,  50  S.  E.  682. 

»»  Appeal  of  Hopkins,  77  Conn.  644,  60  Atl.  657. 

*  People  v.  Sholem,  244  HI.  502,  91  N.  E.  704. 

6  In  case  of  a  will  giving  cash  legacies  the  appointment  of  an 
appraiser  was  deemed  unnecessary  in  Estate  of  Astor,  6  Dem.  Sur.  (N.  Y.) 
402. 

Upon  an  application  for  the  appointment  of  an  appraiser  under 
the  Laws  of  1887,  the  legatees  or  other  beneficiaries  were  not  neces- 
sary parties:  Estate  of  Astor,  20  Abb.  N.  C.  405. 

As  to  the  interpretation  of  the  New  York  statute  of  1905,  pro- 
viding for  the  appointment  of  appraisers  by  the  state  controller,  see 
Duell  T.  Glynn,  191  N.  Y.  357,  84  N.  E.  282. 

As  to  the  authority  of  a  surrogate  of  New  York  county  to  select 
an  appraiser  after  the  enactment  of  chapter  658  of  the  Laws  of 
1900,  see  Estate  of  Sondheim,  32  Misc.  Rep.  296,  66  N.  Y.  Supp.  726, 
affirmed,  69  App.  Div.  5,  74  N.  Y.  Supp.  510. 


296  INHERITANCE  TAXATION. 

the  estate;  but  that  the  time  when  he  shall  proceed, 
where  the  interests  are  ascertainable  and  certain,  is 
in  general  left  to  his  sound  discretion.6 

But  the  statute  of  1896  seems  to  eliminate  the  words 
of  the  former  law  affording  ground  for  this  discre- 
tion; and  under  it  he  must  act  upon  his  own  motion, 
when  he  learns  of  facts  affording  reason  to  believe  that 
such  proceeding  ought  to  be  instituted;  and  upon  the 
application  of  an  interested  party,  when  a  proper  ap- 
lication  is  made.  In  either  case,  his  duty  to  act  apears 
imperative.  At  least  this  is  the  view  taken  by  the 
supreme  court  in  one  case,7  but  in  another  case  the 
view  seems  to  be  toward  the  prior  doctrine,  to  the  effect 
that  the  time  when  a  surrogate  shall  appoint  an  ap- 
praiser and  proceed  is  a  matter  of  sound  discretion.8 

The  surrogate  has  authority,  under  the  New  York 
statutes  of  1896  and  1897,  to  appoint  an  appraiser  upon 
an  application  filed  upon  information  and  belief.  He 
may  supplement  the  petition  by  his  own  official  knowl- 
edge, or  act  independently  of  it.  Since  he  may,  of  his 
own  motion,  appoint  an  appraiser  upon  knowledge 
which  he  possesses,  and  without  petition,  his  authority 
is  not  limited  or  circumscribed  because  a  petition  is 
presented  by  a  competent  person,  with  allegations  upon 
information  and  belief.9 

While  the  surrogate  may,  of  his  own  motion,  cause 
an  appraisement  to  be  made,  it  seems  primarily  to  be 
the  duty  of  the  executors  or  administrators  to  apply 
therefor.  It  was  not  intended  to  relieve  them  of  their 
obligation  by  authorizing  the  court  to  proceed  of  its 
own  motion.10 

«  Estate  of  Westurn,  152  N.  Y.  93,  46  N.  E.  315. 
T  Kelsey  v.  Church,  112  App.  Div.  408,  98  N.  Y.  Supp.  535. 
«  Estate  of  Jones,  54  Misc.  Rep.  202,  105  N.  Y.  Supp.  932. 
»  Estate  of  O'Donohue,  44  App.  Div.  186,  59  N.  Y.  Supp.  1087,  60 
N.  Y.  Supp.  690. 

10  Frazer  v.  People,  6  Dem.  Sur.  174,  3  N.  Y.  Supp.  134. 


APPRAISEMENT,  VALUATION,  AND  ASSESSMENT.  297 

§  252.  Venue  or  Jurisdiction  of  Proceedings.— The 
appraisement,  and  the  proceedings  upon  it,  must  be  in 
the  county  where  the  letters  testamentary  or  of  admin- 
istration are  issued.11  But  where,  by  reason  of  the 
fact  that  the  estate  lies  in  different  counties,  or  in  a 
county  other  than  the  one  wherein  the  decedent  resided, 
two  or  more  courts  have  jurisdiction  to  grant  letters, 
that  court  which  first  acquires  jurisdiction  of  the  ad- 
ministration and  inheritance  tax  proceedings  retains 
jurisdiction  to  the  exclusion  of  the  others,12  and  may 
appoint  an  appraiser  to  appraise  all  of  the  property 
notwithstanding  its  diversity  of  location.13  Thus  in 
New  York  it  has  been  decided  that  when  a  nonresident 
of  the  state  has  died,  leaving  property  in  two  of  its 
counties,  the  surrogate  who  first  issues  ancillary  letters 
upon  the  estate  acquires  exclusive  jurisdiction  to  ap- 
point an  appraiser  for  purposes  of  the  inheritance  tax, 
although  there  has  been  irregularity  in  the  proceedings 
wherein  the  letters  were  obtained.14 

The  rule  in  Pennsylvania  is,  that  the  appraiser  must 
be  appointed  by  the  register  of  wills  in  the  county  in 
which  the  decedent  resided  at  the  time  of  his  death,  or 
the  county  in  which  is  located  the  principal  part  of  his 
estate.16 

§  253.  Law  Governing  in  Case  of  Change  in  Statute. 
It  is  a  general  rule  that,  in  the  absence  of  words  of 
exclusion,  a  statute  enacted  relative  to  the  form  of  pro- 
cedure, or  the  mode  of  attaining  or  defending  rights,  is 
applicable  to  proceedings  pending,  or  subsequently  com- 
menced. Hence  while  the  subjects  and  rates  of  inherit- 
ance taxes,  and  the  rights  of  the  parties  concerning  the 

11  Stinger  v.  Commonwealth,  26  Pa.  429. 

12  See  sec.  235,  ante. 

is  Estate  of  Keenan,  1  Con.  266,  5  N.  Y.  Supp.  200. 

i*  Estate  of  Hathaway,  27  Misc.  Rep.  474,  59  N.  Y.  Supp.  166. 

i*  Estate  of  Dalrymple,  215  Pa.  367,  64  Atl.  554. 


298  INHERITANCE  TAXATION. 

same,  are  governed  by  the  statute  in  force  at  the  time 
of  the  death  of  the  decedent,  the  method  of  procedure 
for  the  determination  and  enforcement  of  the  tax  are, 
in  the  event  of  a  change  in  the  law,  controlled  by  the 
statute  in  force  at  the  time  of  the  institution  of  the  pro- 
ceeding.19 

§  254.  Notice  of  Proceedings — Due  Process. — The 
constitutionality  of  inheritance  tax  statutes  has  been 
challenged  in  a  number  of  instances  on  the  ground  that 
they  provide  no  notice  or  opportunity,  for  hearing  to 
the  heirs,  devisees  and  legatees;  or,  if  they  do  make 
provision  therefor,  that  it  is  insufficient  to  constitute 
due  process  of  law.  The  consensus  of  judicial  opinion 
is,  that  the  persons  liable  for  the  tax  are  entitled  to 
some  kind  of  notice  and  opportunity  to  be  heard  in  the 
proceeding  to  ascertain  the  value  of  the  property  and 
the  amount  of  the  tax;  that  to  assess  and  collect- inher- 
itance taxes  without  such  notice  and  opportunity  would 
work  a  deprivation  of  property  without  due  process  of 
law.  Notice  of  some  sort  is  necessary,  but  it  need  not 
be  provided  for  in  the  most  exact  and  certain  fashion 
practicable  to  devise. 

An  Iowa  statute  was  assailed  because  it  made  no  pro- 
vision at  all  for  notice 'to  heirs,  devisees  and  legatees, 
or  for  opportunity  for  hearing,  and  it  was  argued,  in 
support  of  the  statute,  that  as  the  tax  was  upon  the 
succession,  not  on  the  property,  its  enforcement  did  not 
amount  to  taking  property.  But  the  court  was  of  the 
opinion  that  while  the  tax  was  not  strictly  a  property 
tax,  yet  its  practical  effect  was  to  deprive  heirs,  dev- 
isees, and  legatees  of  property  which  vested  in  them 
on  the  death  of  the  decedent,  and  that  it  was  uncon- 
stitutional in  depriving  them  of  such  property  without 
notice  or  opportunity  for  hearing.17 

i«  Estate  of  Davis,  149  N.  Y.  539,  44  N.  E.  185. 

"  Ferry  v.  Campbell,  110  Iowa,  290,  50  L.  K.  A.  92,  81  N.  W.  604. 


APPRAISEMENT,  VALUATION,  AND  ASSESSMENT.  299 

In  Michigan  an  inheritance  tax  statute  was  assailed, 
as  taking  property  without  due  process  of  law,  because 
it  did  not  provide  for  a  personal  notice,  and  oppor- 
tunity to  resist  assessment.  But  the  court  sustained 
the  statute,  and,  in  so  doing,  observed  that  the  argu- 
ment against  its  constitutionality  lost  sight  of  the  fact 
that  it  did  not  take  the  property  of  the  legatee,  but  im- 
posed a  condition  upon  the  acquisition  of  property.18 

The  New  York  court  has  admitted  that  the  taxpayer 
must  have  some  sort  of  notice  of  the  proceeding  against 
him,  and  a  hearing  or  opportunity  to  be  heard  in  refer- 
ence to  the  value  of  his  property  and  the  amount  of  the 
tax  which  may  be  imposed;  and  unless  he  has  these, 
his  constitutional  right  to  due  process  of  law  is  invaded. 
But  this  court  has  held  that  a  statute  makes  sufficient 
provision  for  notice,  within  constitutional  require- 
ments, which  provides  that  the  surrogate  '/shall  ap- 
point some  competent  person  as  appraiser  as  often  as 
and  when  occasion  may  require,  whose  duty  it  shall 
be  forthwith  to  give  such  notice  by  mail,  and  to  such 
persons  as  the  surrogate  may  by  order  direct,  of  the 
time  and  place  he  will  appraise"  the  property.  This 
statute  also  provides  that  the  surrogate,  immediately 
after  he  has  assessed  the  tax,  shall  "give  notice  thereof 
by  mail  to  all  persons  known  to  be  interested  therein."1' 

In  Montana  a  statute  similar  to  the  New  York  has 
been  upheld  as  affording  notice  amply  sufficient  to  ac- 
cord to  every  person  interested  due  process  of  law.20 

Under  the  New  York  statutes,  at  least  under  the 
earlier  ones,  it  is  the  duty  of  the  appraiser  to  give 
notice  by  mail,  of  the  time  and  place  of  appraise- 
ment, to  such  persons  as  the  surrogate  may  by  order 
direct.  It  is  necessarily  implied  from  this  that  the  sur- 

is  Union  Trust  Co.  T.  Durfee,  125  Mich.  487,  84  N.  W.  1101. 
"  Estate  of  McPherson,  104  N.  Y.  306,  58  Am.  Rep.  502,  10  N.  E. 
685. 

«  State  T.  District  Court,  41  Mont.  357,  109  Pac.  438. 


300  INHERITANCE  TAXATION. 

rogate  will  designate  all  persons  entitled  to  notice ;  and 
if  he  omits  to  do  so,  it  will  be  error,  on  account  of  which 
any  tax  imposed  upon  the  person  not  notified  or  heard 
will  be  invalid  as  having  been  imposed  without  juris- 
diction. Clearly,  if  any  persons  are  entitled  to  notice, 
the  heirs,  devisees  and  legatees,  who  are  liable  for  the 
tax,  must  be,  and  appraisement  proceedings  of  which 
they  have  not  been  notified  and  in  which  they  have  had 
no  opportunity  to  be  heard  are  fatally  defective.21 

The  New  York  court  of  appeals  has  said  that  the  sur- 
rogate is  the  representative  of  the  state  for  purposes 
relating  to  the  appraisement  and  taxation  of  property, 
and  that  he  may  proceed  with  the  assessment  of  the  in- 
heritance tax  without  notice  to  any  state  official.22  But 
the  decisions  of  the  supreme  court  are  to  the  effect  that 
the  state  controller 23  must  be  given  notice,  and  also 
the  county  treasurer 24  and  district  attorney.25 

Where  children  are  given  notice  that  their  father's 
estate  is  to  be  appraised,  the  surrogate  is  without  ju- 
risdiction, on  their  default,  to  impose  a  tax  on  property 
going  to  them  from  their  grandfather's  will.26 

Persons  who,  although  not  actually  served  with 
notice  of  an  appraisement,  nevertheless  have  actual 
notice  of  it,  and  ample  opportunity  to  show  the  real 
value  of  the  estate  if  not  satisfied  with  the  valuation 

21  Estate  of  McPherson,  104  N.  Y.  306,  58  Am.  Rep.  502,  10  N.  B. 
685;  Estate  of  Astor,  6  Dem.  Sur.  402;  Estate  of  Astor,  6  Dem.  Sur. 
413,  2  N.  Y.  Supp.  630;  Estate  of  Vanderbilt,  2  Con.  319,  10  N.  Y. 
Supp.  239;  Estate  of  Winters,  21  Misc.  Eep.  552,  48  N.  Y.  Supp.  1097. 

22  Estate  of  Wolfe,  137  N.  Y.  205,  33  N.  E.  156. 

28  Estate  of  Wolfe,  2  Con.  600,  15  N.  Y.  Supp.  539;  Estate  of 
Bolton,  35  Misc.  Eep.  688,  72  N.  Y.  Supp.  430. 

In  Estate  of  Collins,  104  App.  Div.  184,  93  N.  Y.  Supp.  342,  it  is 
held  that  the  state  controller  must  be  given  notice  of  an  adminis- 
trator's petition  for  an  order  declaring  an  estate  exempt  from  the  tax. 

24  Estate  of  Fulton,  30  Misc.  Kep.  70,  62  N.  Y.  Supp.  995. 

25  Estate  of  Vanderbilt,  2  Con.  319,  10  N.  Y.  Supp.  239. 

z«  Estate  of  Backhouse,  110  App.  Div.  737,  96  N.  Y.  Supp.  466, 
affirmed,  185  N.  Y.  544,  77  N.  E.  1181. 


APPRAISEMENT,  VALUATION,  AND  ASSESSMENT.  301 

fixed  by  the  appraiser,  should  not  be  heard  to  complain 
in  an  action  against  them  to  collect  the  tax." 

§  255.  Property  to  be  Included  in  Appraisement. — 
The  question  as  to  what  property  is  subject  to  inherit- 
ance taxation,  and  hence  what  should  be  appraised  and 
assessed,  has  been  considered  in  a  previous  chapter.28 
The  deductions  proper  to  be  made  on  account  of  debts, 
expenses  of  administration,  and  so  forth,  will  be  dis- 
cussed in  the  chapter  to  follow.29  It  is  well  understood 
that  the  tax  does  not  attach  to  the  very  articles  of  which 
the  decedent  died  possessed,  but  that  it  is  imposed  only 
upon  what  remains  for  distribution  after  the  admin- 
istration expenses  and  the  rightful  claims  of  third 
parties  are  paid  or  provided  for.  The  tax  is  on  the 
1  'net  succession"  to  the  beneficiaries.30 

But  the  right  of  the  state  to  the  tax  accrues  at  the 
moment  of  death,  and  is  measured  as  to  any  beneficiary 
by  the  value  at  that  time  of  such  property  as  then 
passes  to  him,  less  the  deductions  referred  to.  Sub- 
sequent depreciation  or  appreciation  in  the  value  is 
ordinarily  not  considered.  From  these  premises  the 
supreme  court  of  California  has  drawn  the  conclusion 
that  property  lost  through  the  misappropriation  of 
the  executor  should  be  included  in  computing  and  as- 
sessing the  inheritance  tax  against  residuary  legatees. 
The  court  remarks  that  in  the  case  of  ordinary  taxes  on 
property,  it  would  not  be  contended  that  the  loss  or  de- 
struction of  the  property  after  the  accrual  of  the  tax, 
but  before  its  collection,  would  affect  the  liability  of  the 
taxpayer;  and  there  is  no  material  difference  between 
such  a  case  and  the  one  under  consideration.81 

27  Harrison  v.  Johnston,  109  Tenn.  245,  70  S.  W.  414. 

28  See  sees.  50-72,  ante. 
2»  See  sees.  270-286,  post. 

so  Estate  of  Kennedy,  157  Cal.  517,  108  Pac.  280;  Estate  of  Gihon, 
169  N.  Y.  443,  62  N.  E.  561. 

»i  Estate  of  Kite,  159  Cal.  392,  113  Pac.  1072. 


302  INHERITANCE  TAXATION. 

The  exclusion  of  a  worthless  account  in  favor  of  the 
decedent,  in  estimating  the  value  of  the  estate  for  pur- 
poses of  the  inheritance  tax,  is  proper.  It  cannot  be 
deemed  property  transferred  or  disposed  of  by  will 
or  the  intestate  laws,  within  the  contemplation  of  the 
tax  law.32  The  appraisement  of  notes  and  other  claims 
in  litigation  will  be  considered  hereafter.33 

In  discussing  the  sufficiency  of  the  evidence  of  the 
existence  of  certain  assets,  the  New  York  court  has 
said  that  an  estate  should  not  be  taxed  except  upon 
clear  and  convincing  proof  of  the  extent  of  property 
passing  upon  the  death  of  the  decedent  or  by  transfers 
made  before  death  and  in  contemplation  thereof;  but 
the  court  does  not  hold  that  no  property  can  be  ap- 
praised by  the  appraiser  or  assessed  by  the  surrogate 
unless  it  can  be  identified.84  Manifestly,  the  appraiser, 
in  ascertaining  what  property  is  subject  to  the  tax, 
should  not  rely  upon  briefs  of  counsel.84* 

The  fact  that  the  main  portion  of  the  personal  assets 
of  the  estate  of  a  resident  decedent  has  been  distributed 
through  ancillary  administration  in  another  state  does 
not  excuse  the  domiciliary  administrator  from  includ- 
ing in  his  inventory,  for  the  purpose  of  computing  the 
inheritance  tax  in  the  state  of  the  domicile,  the  prop- 
erty thus  distributed  in  a  foreign  jurisdiction.35  Nor 
is  he  excused  from  filing  an  inventory  of  personal  prop- 
erty outside  of  the  state,  because  he  is  not  liable  there- 
for on  his  final  account  and  cannot  obtain  possession 
of  it.36 

32  Estate  of  Manning,  169  N.  Y.  449,  62  N.  E.  565.  A  claim  of  no 
present  value  should  not  be  included  in  the  appraisement:  Estate  of 
Bosenberg,  114  N.  Y.  Supp.  726. 

as  See  sec.  257,  post. 

8*  Estate   of  Kennedy,   113   App.   Div.   4,   99   N.   Y.   Supp.   72. 

s*a  Estate  of  Astor,  6  Dem.  Sur.  413,  2  N.  Y.  Supp.  630. 

86  Appeal  of  Hopkins,  77  Conn.  644,  60  Atl.  657. 

s«  Appeal  of  Bridgeport  Trust  Co.,  77  Conn.  657,  60  Atl.  662. 


APPRAISEMENT,  VALUATION,  AND  ASSESSMENT.  303 

Property  which  is  not  taxable  as  such  may  be  con- 
stitutionally considered  in  fixing  the  amount  of  the 
inheritance  tax.87 

§  256.  Valuation  of  Property  in  General. — In  stat- 
ing what  value  of  property  shall  be  the  basis  of  in- 
heritance taxes,  the  statutes  use  various  expressions. 
Sometimes  they  state  that  the  tax  shall  be  imposed 
according  to  the  " clear  market  value"  of  the  property, 
sometimes  according  to  the  "fair  market  value,"  and 
sometimes  at  the  "actual  market  value."  Doubtless 
other  expressions  are  also  used,  but  perhaps  they  are 
all  intended  to  convey  practically  the  same  significance, 
that  is,  what  the  property  would  sell  for  under  ordinary 
or  reasonably  favorable  circumstances,  not  what  it 
might  bring  at  a  forced  or  involuntary  sale,  nor  yet 
what  it  is  assessed  for  on  account  of  ordinary  taxes, 
but  its  fair  market  value.38 

Where  real  estate  was  owned  by  the  decedent  in 
common  with  others,  perhaps  deduction  should  be  made 
on  account  of  permanent  improvements  placed  on  the 
land  by  his  cotenants,  presumably  with  the  knowledge 
of  all  the  owners,  although  partition  has  not  been  in- 
stituted or  contribution  asked ;  but  it  is  otherwise  as  to 
taxes  paid  by  strangers  to  the  title." 

§  257.  Valuation  of  Notes  and  Doubtful  or  Liti- 
gated Claims. — Promissory  notes  which  a  testator  has 
directed  his  executor  to  cancel  and  surrender  to  the 

37  Kingsbury  v.  Chapin,  196  Mass.  533,  13  Ann.  Cas.  738,  82  N. 
E.  700;  Plummer  T.  Coler,  178  U.  S.  115,  44  L.  Ed.  998,  20  Sup. 
Ct.  Bep.  829. 

ss  Walker  v.  People,  192  111.  106,  61  N.  E.  489;  Estate  of  McGhee, 
105  Iowa,  9,  74  N.  W.  695. 

When  a  devisee  has  sold  the  property  for  a  certain  amount,  which 
was  the  best  price  he  could  obtain,  the  property  should  not  be  ap- 
praised at  a  higher  figure,  on  the  opinion  of  a  real  estate  broker: 
Estate  of  Arnold,  114  App.  Div.  244,  99  N.  Y.  Supp!  740. 

«»  Estate  of  Wood,  68  Mi»c.  Kep.  267,  123  N.  Y.  Supp.  574. 


304  INHERITANCE  TAXATION. 

makers  without  payment  should  be  appraised  at  their 
fair  market  value,  not  their  face  value.40  A  note  on 
which  suit  has  been  brought  by  the  administrators,  and 
is  still  pending  when  appraisement  is  made,  should  be 
excluded  from  the  valuation  and  reserved  for  future 
appraisement  in  case  of  success  in  collecting  it.41  Al- 
though the  estate  has  been  successful  in  a  suit  upon  a 
claim,  but  the  ultimate  result  is  yet  doubtful  because 
there  remains  outstanding  an  accounting  under  an  in- 
terlocutory judgment  and  the  right  of  the  unsuccessful 
party  to  appeal,  the  claim  should  not  be  considered.42 
So  where  a  trust  fund,  alleged  to  constitute  a  part  of  an 
estate,  is  claimed  by  heirs  of  the  decedent's  husband, 
who  intended  to  litigate  their  claim  to  the  court  of 
last  resort,  the  value  of  such  fund  should  be  excluded 
in  determining  the  value  of  the  estate  presently  tax- 
able.43 It  is  hardly  necessary  to  say  that,  in  estimat- 
ing the  value  of  an  estate,  a  worthless  account  in  favor 
of  the  decedent  is  properly  excluded.'44 

Where  an  administrator  makes  an  advantageous 
compromise  of  a  claim  existing  in  favor  of  the  estate, 
the  inheritance  tax  should  be  imposed,  not  upon  its 
face  value,  but  upon  what  he  received  in  settlement.45 

Where,  on  the  original  appraisement,  deductions  for 
doubtful  or  uncertain  claims  are  allowed,  the  report 
of  the  appraiser  and  the  order  of  taxation  should  recite 
that  the  deduction  is  made  without  prejudice  to  the 
right  of  the  state  to  a  further  appraisement  and  taxa- 
tion of  the  whole  or  any  part  thereof,  in  the  event  of 
its  appearing  that  the  items  deducted  are  not  valid 

«  Morgan  v.  Warner,  45  App.  Div.  424,  60  N.  Y.  Supp.  963,  af- 
firmed, 162  N.  Y.  612,  57  N.  B.  1118. 

41  Estate  of  Westurn,  152  N.  Y.  93,  46  N.  E.  315. 

42  Estate  of  Skinner,  106  App.  Div.  217,  94  N.  Y.  Supp.  144. 
4s  Estate  of  Newcomb,  35  Misc.  Eep.  589,  72  N.  Y.  Supp.  58. 

44  Estate  of  Manning,  169  N.  Y.  449,  62  N.  E.  565;  Estate  of 
Rosenberg,  ll4  N.  Y.  Supp.  726. 

46  Estate   of   Thomas,   39   Misc.   Bep.    223,   79   N.   Y.   Supp.   571. 


APPRAISEMENT,  VALUATION,  AND  ASSESSMENT.  305 

claims  or  are  of  less  value  than  the  amount  at  which 
they  were  allowed  in  reduction  of  the  assets  of  the 
estate.46* 

§  258.  Valuation  of  Corporate  Stock.— The  fair 
market  value  of  shares  of  stock  in  a  corporation,  for 
purposes  of  inheritance  taxation,  is  not  what  they 
would  bring  on  a  forced  sale  if  all  should  be  placed 
upon  the  market  at  once,  but  what  they  would  bring  at 
a  sale  at  or  about  the  time  of  the  death  of  the  decedent, 
after  due  notice,  under  fair  conditions,  and  in  the 
ordinary  course  of  business.  In  arriving  at  such  value 
the  appraiser  and  court  may  consider  the  opinions  of 
qualified  witnesses;  price  quotations  contained  in 
market  reports  and  authentic  publications ;  quotations 
on  the  public  exchanges;  prices  established  by  actual 
sales,  whether  or  not  they  are  made  at  the  exchanges ; 
their  own  knowledge  on  the  subject ;  and,  in  the  absence 
of  other  competent  evidence,  the  actual  or  intrinsic 
value  of  the  corporate  property  itself.46  Evidence  of 

«*  Estate  of  Eice,  56  App.  Div.  253,  61  N.  Y.  Supp.  911,  68  N.  Y. 
Supp.  1147;  Estate  of  Porter,  67  Misc.  Rep.  19,  124  N.  Y.  Supp.  676. 

<e  Walker  v.  People,  192  111.  106,  61  N.  E.  489;  Estate  of  Gould, 
19  App.  Div.  352,  46  N.  Y.  Supp.  506,  156  N.  Y.  423,  51  N.  E.  287; 
Estate  of  Proctor,  41  Misc.  Eep.  79,  83  N.  E.  643. 

In  the  above  Walker  case  the  Illinois  court  uses  this  language: 
"It  has  been  held  in  the  state  of  New  York,  in  passing  upon  the 
method  adopted  by  an.  appraiser  in  his  appraisement  of  large  quanti- 
ties of  stocks  and  securities,  that  the  correct  rule  was  adopted  where 
the  appraiser  based  his  appraisal  upon  public  sales  of  securities  at 
the  stock  exchange.  In  Estate  of  Gould,  19  App.  Div.  352,  46  N.  Y. 
Supp.  506,  it  was  said:  'It  is  claimed,  however,  that  the  rule  should 
be  so  construed  that,  when  the  value  of  large  blocks  of  stock  is 
involved,  only  the  purchase  and  sale  in  markets  of  correspondingly 
large  blocks  of  stock  should  be  considered,  upon  the  theory  that 
such  large  blocks  would  necessarily  sell  at  lower  rates  than  small 
quantities  of  stock  sold  separately,  and  that  throwing  large  blocks 
of  stock  upon  the  market  all  at  once  would  have  a  tendency  to  pro- 
duce a  break  in  the  market,  and  perhaps  a  total  inability  to  get 

more  than  a  mere  nominal  price  offered  for  that  stock Under 

the  construction  contended  for}  the  securities  involved  in  this  pro- 
20 


306  INHERITANCE  TAXATION. 

sales  a  reasonable  time  after,  as  well  as  before,  the  time 
as  of  which  the  valuation  is  to  be  determined,  is  admis- 
sible. In  the  event  that  the  stock  has  no  market  value, 
it  is  nevertheless  taxable;  and  in  that  case  the  ap- 
praiser must  ascertain  the  actual  value  of  the  prop- 
erty, taking  into  consideration  the  earning  capacity 
of  the  corporation,  the  goodwill  of  the  business,  and, 
in  the  case  of  a  manufacturing  corporation,  the  value 
of  secret  receipts  which  it  uses.  The  actual  value  of 

ceeding  might  have  been  shown  to  be  of  little  or  no  value,  by  con- 
sidering that  forcing  them  upon  the  market  in  large  blocks  at  one 
time  would  break  the  market  and  make  them  practically  unsalable 
at  all.  The  rule  adopted  by  the  appraiser  was  the  correct  rule, 
and  he  apparently  applied  it  properly  in  determining  the  value  of 
the  large  amount  of  securities  belonging  to  the  decedent's  estate.' " 

The  Illinois  court  then  continues:  "In  People  v.  Coleman,  107  N. 
Y.  544,  14  N.  E.  431,  the  court  says:  'The  market  value  of  the  shares 
of  capital  stock  may  sometimes  be  above  and  sometimes  below  the 
actual  value.  Such  value  may  be  greatly  enhanced  or  depressed  for 
speculative  purposes,  without  any  change  in  the  actual  value;  but 
the  market  value  of  any  stock  which  is  listed  at  the  stock  exchange 
in  New  York  and  largely  dealt  in  from  day  to  day  for  a  series 
of  months  will  usually  furnish  the  best  measure  of  value  for  all 
purposes.  The  competition  of  sellers  and  buyers,  most  of  them  care- 
ful and  vigilant  to  take  account  of  everything  affecting  the  value 
of  stock  in  which  they  deal,  and  each  mindful  of  his  own  interest, 
and  seeking  for  some  personal  gain  and  advantage,  will  almost  uni- 
versally, if  time  sufficient  be  taken,  furnish  the  true  measure  of  the 
actual  value  of  the  stock.'  The  quotations  of  the  stock  exchange 
may  be  temporarily  uncertain  and  untrustworthy,  if  the  sales  thereon 
are  suddenly  affected  for  speculative  purposes,  or  by  the  forcing  upon 
the  market  and  to  sale  of  large  blocks  of  stock;  ....  but  such 
quotations  may  be  a  fair  and  safe  guide  where  they  are  taken  for 
a  reasonable  period  of  sales  made  in  the  usual  and  ordinary  course 
of  business." 

Where  the  appraiser  introduces  in  evidence  three  printed  volumes 
of  the  commercial  and  financial  records,  in  proceedings  to  determine 
the  value  of  stocks,  but  the  particular  part  of  the  books  relied  upon 
are  not  pointed  out;  they  will  not  be  considered  on  an  appeal  from 
his  decision:  Estate  of  Havemeyer,  32  Misc.  Eep.  416,  66  N.  Y.  Supp. 
722. 


APPRAISEMENT,  VALUATION,  AND  ASSESSMENT.  307 

stock  having  no  market  value  must  be  taken  as  the 
latter  until  the  contrary  is  shown.47 

In  determining  the  value  of  shares  in  a  joint  stock 
association,  which  are  not  listed  on  the  stock  exchange 
or  sold  in  the  open  market,  the  value  of  the  property 
they  represent,  including  the  real  estate,  should  be 
ascertained.48 

Judicial  knowledge -will  be  taken  that  the  value  of 
stock  in  an  industrial  corporation  often  does  not  bear 
close  relations  to  the  rate  of  dividends  which  may  have 
been  paid  at  any  given  time;  the  rate  of  dividends  is 
not  a  controlling  gauge  of  values.4* 

§  259.  Time  of  Which  Valuation  Determined. — 
Since  inheritance  taxes  are  imposed  upon  the  succes- 
sion rather  than  upon  the  property,  and  the  succes- 
sion takes  place  at  the  time  of  the  decedent's  death,  it 
follows  that  the  tax  is  to  be  measured  by  the  value  of 
the  estate  as  of  the  death  of  the  decedent,  not  as  of 
the  date  of  the  probate  of  the  will,  the  distribution  of 
the  estate,  or  any  other  proceeding  looking  toward  the 
administration  of  the  estate  and  the  collection  of  the 
tax.  The  appraisement  is  to  be  made  and  the  tax  fixed 
according  to  the  value  of  the  property  as  of  the  day  of 
the  decedent's  death,  without  regard  to  subsequent  de- 
preciation, appreciation,  or  income,  unless,  as  is  the 

*t  Estate  of  Brandreth,  28  Misc.  Rep.  468,  59  N.  Y.  Supp.  1092,  169 
N.  Y.  437,  58  L.  R.  A.  148,  62  N.  E.  563;  Estate  of  Proctor,  41  Misc. 
Rep.  79,  83  N.  Y.  Supp.  643. 

As  to  the  determination  of  the  value  of  inactive  stocks  of  which 
•ales  are  infrequent,  see  Estate  of  Curtice,  111  App.  Div.  230,  97  N. 
Y.  Supp.  444,  affirmed,  185  N.  Y.  543,  77  N.  E.  1184;  Estate  of  Cook,  50 
Misc.  Rep.  487,  100  N.  Y.  Supp.  6211. 

«  Estate  of  Jones,  172  N.  Y.  575,  60  L.  R.  A.  476,  65  N.  E.  570. 

«  Estate  of  Smith,  71  App.  Div.  602,  76  N.  Y.  Supp.  185;  Estate 
of  Curtice,  111  App.  Div.  230,  97  N.  Y.  Supp.  444,  affirmed,  185  N.  Y. 
543,  77  N.  E.  1184. 


308  INHERITANCE  TAXATION. 

case  in  Montana  and  perhaps  some  other  states,  the 
statute  expressly  requires  the  increase  to  be  taken  into 
consideration.  This  general  rule  has  been  recognized 
by  the  courts,  although  not  clearly  expressed  or  re- 
quired by  the  statutes.80 

§  260.  Report  of  Appraiser. — The  appraiser  should 
report  any  property,  estate,  or  interest  therein  subject 
to  the  inheritance  tax.  His  report  should  clearly  ex- 
press that  it  embraces  all  of  the  property  which  may  be 
taxed  at  the  date  of  the  death  of  the  decedent ;  and  if  it 
does  not  do  so,  it  should  not  be  confirmed.61  It  should 
also  show  the  basis  or  foundation  of  his  findings.52  But 
it  was  not  the  duty  of  the  appraiser,  under  the  early 
New  York  practice,  to  include  in  his  report  a  statement 
of  exempt  property,"  nor  make  any  deductions  on  ac- 
count of  debts  and  expenses  of  administration.54  Be- 
fore the  surrogate  has  acted  upon  a  report,  he  may 
send  it  back  to  the  appraiser  for  the  introduction  of 
additional  proof.55  The  report  of  the  appraiser  is 
simply  advisory  to  the  court  whose  duty  it  is,  ulti- 
mately, to  fix  the  value  of  the  property  and  the  tax  to 
which  it  is  liable.56 

eo  Hooper  v.  Bradford,  178  Mass.  95,  59  N.  E.  678;  State  r.  Pro- 
bat*  Court,  112  Minn.  279,  128  N.  W.  18;  Estate  of  Hartman,  70  N. 
J.  Eq.  664,  62  Atl.  560;  Estate  of  Davis,  149  N.  Y.  539,  44  N.  E. 
185;  Morgan  v.  Cowie,  49  App.  Div.  612,  63  N.  Y.  Supp.  608;  Estate 
of  Earle,  74  App.  Div.  458,  77  N.  Y.  Supp.  503;  Estate  of  Lines, 
155  Pa.  378,  26  Atl.  728. 

It  is  said  that  the  tax  should  be  imposed  upon  the  property  in  the 
form  in  which  it  stood  at  the  time  of  the  death  of  the  decedent: 
Estate  of  Offerman,  25  App.  Div.  94,  48  N.  Y.  Supp.  993. 

81  Estate  of  Earle,  74  App.  Div.  458,  77  N.  Y.  Supp.  503. 

82  Estate  of  Bolton,  35  Misc.  Rep.  688,  72  N;  Y.  Supp.  430. 

»3  Estate  of  Astor,  6  Dem.  Sur.  413,  2  N.  Y.  Supp.  630;  Estate  of 
Vanderbilt,  2  Con.  319,  10  N.  Y.  Supp.  239;  Estate  of  Wolfe,  29  Abb. 
N.  C.  340,  66  Hun,  389,  21  N.  Y.  Supp.  515,  522. 

6*  See  sec.  271,  post. 

68  Estate  of  Kelly,  29  Mis«.  Rep.  169,  60  N.  Y.  Supp.  1005. 

••  County  Court  v.  Watson  (Colo.),  118  Pac.  979. 


APPRAISEMENT,  VALUATION,  AND  ASSESSMENT.  309 

§  261.  Reappraisement  of  Property. — A  second  ap- 
praisement is  not  allowable  under  the  law  of  Pennsyl- 
vania; the  statutes  of  that  state  seem  to  contemplate 
that  the  first  appraisal  shall  be  final.  The  remedy 
for  an  erroneous  appraisement  is  by  appeal.57  But 
in  most  of  the  states  the  inheritance  tax  statutes  con- 
template a  second  appraisement  of  an  estate  when  the 
first  one  has  failed  truly  or  sufficiently  to  present  the 
property  to  the  probate  court  for  the  assessment  of  the 
tax.  Indeed,  many  statutes  authorize  the  probate 
courts  or  judge,  either  upon  his  own  motion  or  the  ap- 
plication of  any  interested  person,  to  appoint  an  ap- 
praiser as  often  as  or  whenever  occasion  may  arise. 
Under  this  statutory  provision  a  county  court  in  Col- 
orado has  jurisdiction,  on  its  own  motion,  when  the 
report  of  an  appraiser  is  insufficient  to  enable  the  court 
to  fix  the  inheritance  tax,  to  vacate  the  order  appoint- 
ing the  appraiser  and  appoint  a  new  one.88 

In  Iowa,  when  the  state  has  not  had  notice  of  an  ap- 
praisement, and  has  not  been  a  party  thereto,  the  dis- 
trict court  may,  on  the  application  of  the  state,  and  a 
showing  of  error  in  the  proceedings  theretofore  had, 
order  a  new  appraisement  to  correct  the  error.59 

When  property  has  been  submitted  to  a  surrogate 
for  taxation,  his  decree,  if  wrong,  can  ordinarily  be 
reviewed  only  on  appeal.  His  decision  concludes  the 
parties  and  puts  the  matter  beyond  question  in  other 
proceedings.  Yet  when  property  belonging  to  an  estate 
has  not  come  to  the  knowledge  of  an  appraiser,  and  for 
that  reason  has  been  omitted  from  the  appraisement, 
a  further  appraisement  may  be  ordered.  Such  prop- 
erty has  never  been  submitted  to  the  jurisdiction<vDf 
the  appraiser  or  surrogate.  It  has  never  ' '  had  its  day 

ST  Estate  of  Moneypenny,  181  Pa.  309,  37  Atl.  589. 
es  County  Court  v.  Watson  (Colo.),  118  Pac.  979. 
so  Estate  of  McGhoe,  105  Iowa,  9,  74  N.  W.  695. 


310  INHERITANCE  TAXATION. 

in  court. " eo  Where  personal  property  not  taxed  on  the 
first  appraisal  because  claimed  by  a  daughter  of  the 
decedent  as  having  been  assigned  to  her  by  the  de- 
ceased is  subsequently  adjudged,  on  the  suit  of  an- 
other daughter,  to  be  a  part  of  the  decedent's  estate, 
the  surrogate  has  authority  to  'order  a  further  ap- 
praisement.61 But  in  Pennsylvania,  where  the  statutes 
do  not  contemplate  or  provide  for  more  than  one  ap- 
praisement, a  second  appraisement  is  not  allowable  in 
case  the  appraiser  omits  property  not  through  fraud 
or  accident,  but  through  a  mistake  of  law.62 

The  conclusiveness  of  appraisements  and  the  power 
of  the  probate  court  to  modify  or  vacate  its  decrees  in 
the  matter  of  appraisements  and  assessments  will  be 
further  considered  in  a  subsequent  chapter.68 

eo  Estate  of  Smith,  23  N.  Y.  Supp.  762;  Estate  of  Wolfe,  137  N. 
Y.  205,  33  N.  E.  156. 

«i  Estate  of  Lansing,  31  Misc.  Eep.  148,  64  N.  Y.  Supp.  1125. 
«z  Estate  of  Moneypenny,  181  Pa.  309,  37  Atl.  589. 
•»  See  sees.  290-293,  post. 


DEDUCTIONS  FROM  VALUATION.  311 

CHAPTER  XVIII. 
DEDUCTIONS  FROM  VALUATION. 

§  270.  Net  Succession  as  Measure  of  Tax. 

§  271.  Powers  of  Appraiser. 

§  272.  Debts  of  Decedent,  in  General. 

§  273.  Debts  Secured  by  Mortgage  on  Eeal  Estate. 

§  274.  Debts  Owing  by  Nonresident  Decedents. 

§  275.  Apportionment  Between  Exempt  and  Nonexempt  Assets. 

§  276.  Expenses  of  Funeral  and  Interment. 

§  277.  Expenses  of  Administration. 

§  278.  Fees  and  Disbursements  of  Temporary  Administrator. 

§  279.  Expenses  of  Litigation  or  Will  Contest. 

§  280.  Compensation  of  Executors  or  Administrators. 

§  281.  Compensation  of  Trustees. 

§  282.  Commissions  of  Brokers. 

§  283.  Property  Taxes  Paid  by  Executor. 

§  284.  United  States  Succession  Tax. 

§  285.  Homestead,  Exemptions,  and  Family  Allowance. 

§  286.  Property  Misappropriated  by  Executor. 

§  270.  Net  Succession  as  Measure  of  Tax.— While 
the  inheritance  tax  is  said  to  accrue  as  of  the  time 
of  the  death  of  the  decedent,  yet  it  does  not  attach 
to  the  very  articles  of  property  of  which  he  dies  pos- 
sessed, but  rather  upon  such  property  as  remains  for 
distribution  after  the  payment  of  debts  and  expenses 
of  adminstration.  The  tax  is  imposed  upon  the  lega- 
tee, devisee,  or  heir,  and  upon  him  only  as  to  such 
property  as  he  actually  takes  on  distribution.  The 
amount  of  the  tax  as  to  any  distributee  is  to  be  deter- 
mined according  to  the  value  of  the  "net  succession," 
that  is,  the  value  of  such  property  as  remains  for  him 
after  the  satisfaction  of  such  charges  and  burdens  as 
may  lawfully  be  satisfied  in  due  course  of  administra- 
tion, for  it  is  only  such  property  that  can  truly  be 
said  to  pass  to  him.  The  courts  have  recognized  this 
doctrine  without  any  express  statutory  declaration.1 

i  Estate  of  Kennedy,  157  Cal.  517,  108  Pac.  280;   Estate  of  Hite, 
159  Cal.  392,  113  Pac.  1072;  Appeal  of  Gallup,  76  Conn.  617,  57  Atl. 


312  INHERITANCE  TAXATION. 

§  271.  Powers  of  Appraiser. — Under  the  New  York 
practice,  as  laid  down  by  some  of  the  decisions,  the 
appraiser  must  make  his  report  of  the  whole  value  of 
each  legacy  or  distributive  share,  without  any  deduc- 
tion for  any  purpose,  or  any  testamentary  provision; 
but  the  surrogate  has  authority  to  deduct  from  the  ap- 
praised value  the  debts,  funeral  expenses,  and  admin- 
istration expenses,  although  the  statute  does  not  in 
express  terms  confer  such  authority.2  But  in  some 
counties  the  practice  has  always  been  for  the  appraiser 
to  receive  such  evidence  as  might  be  submitted  to  es- 
tablish claims  for  deduction,  and  his  conclusions  have 
been  adopted  by  the  court,  unless  objection  was  made 
thereto  or  they  were  palpably  improper.3  If  alleged 
deductible  debts  have  not  been  urged  before  the  ap- 
praiser, nor  reserved  for  future  action,  as  they  may  be 
in  a  proper  case,  and  the  time  for  an  appeal  from  the 
order  fixing  the  tax  has  elapsed,  the  surrogate  is  with- 
out jurisdiction  to  grant  relief.* 

§  272.  Debts  of  Decedent,  in  General.— The  state 
does  not  advance  its  claims  for  inheritance  taxes  ad- 
versely to  creditors  of  the  estate  of  a  decedent,  but 
holds  the  same  in  abeyance  until  the  debts  for  which 
the  estate  is  liable  are  paid.  The  valid  debts  of  the 
estate  are  deducted  from  its  value  and  the  inheritance 
tax  is  imposed  upon  the  residuum  only,  or  rather  upon 
the  share  of  each  distributee  in  the  residuum.  This, 
of  course,  is  but  a  restatement  of  what  has  already  been 

699;  Morrow  v.  Durant,  140  Iowa,  437,  17  Ann.  Gas.  850,  23  L.  B. 
A.,  N.  S.,  474,  118  N.  W.  781;  Estate  of  Gihon,  169  N.  Y.  443,  62  N. 
E.  561;  Estate  of  Hutchinson,  105  App.  Div.  487,  94  N.  Y.  Supp.  354; 
Estate  of  Pepper,  159  Pa.  508,  28  Atl.  353. 

2  Estate  of  Swift,  137  N.  Y.  77,  18  L.  B.  A.  709,  32  N.  E.  1096; 
Estate  of  Ludlow,  4  Misc.  Bep.  594,  25  N.  Y.  Supp.  989;  Estate  of 
Millward,  6  Misc.  Bep.  425,  27  N.  Y.  Supp.  286. 

3  Estate  of  Wormser,  28  Misc.  Bep.  608,  59  N.  Y.  Supp.  1088. 

4  Estate  of  Morgan,  36  Misc.  Eep.  753,  74  N.  Y.  Supp.  478. 


DEDUCTIONS  FROM  VALUATION.  313 

said  in  the  second  preceding  section.8  The  debts  al- 
lowable as  a  deduction  are  such  only  as  could  be  en- 
forced against  the  estate  if  payment  were  resisted." 

§  273.  Debts  Secured  by  Mortgage  on  Real  Estate. 
In  the  case  of  debts  secured  by  mortgage  on  real 
estate,7  the  question  arises  whether  they  should  be  de- 
ducted from  the  value  of  the  personal  property  or  from 
the  value  of  the  encumbered  real  property.  The  rule 

5  Estate  of  McGhee,  105  Iowa,  9,  74  N.  W.  695;  Succession  of 
Lery,  115  La.  377,  5  Ann.  Gas.  871,  8  L.  E.  A.,  N.  S.,  1180,  39  South. 
37,  affirmed,  Cahen  v.  Brewster,  203  U.  S.  543,  8  Ann.  Cas.  215,  51 
L.  Ed.  310,  27  Sup.  Ct.  Rep.  174;  Estate  of  King,  56  App.  Div.  617, 
67  N.  Y.  Supp.  766,  affirmed,  172  N.  Y.  616,  64  N.  E.  1122;  Estate 
of  Havemeyer,  32  Misc.  Rep.  416,  <>6  N.  Y.  Supp.  722.  To  the  same 
effect,  see  the  cases  cited  under  the  first  section  of  this  chapter. 

The  syllabus  of  a  comparatively  recent  Louisiana  case  reads  as 
follows:  The  deceased  bequeathed  to  her  husband  all  of  the  property 
of  which  she  died  possessed.  That  property  consisted  exclusively  of 
her  share  of  the  property  of  the  community  which  existed  between 
herself  and  her  husband.  That  share  consists  of  one-half  of  the  com- 
munity property  after  payment  of  the  community  debts.  In  fixing 
the  amount  of  the  tax  upon  inheritances,  the  debts  of  the  succession 
have  to  be  first  deducted:  Succession  of  May,  120  La.  692,  45  South. 
551. 

«  Estate  of  Wormser,  36  Misc.  Rep.  434,  73  N.  Y.  Supp.  748.  Where 
an  action  is  pending  against  a  firm  of  which  the  decedent  was  a 
member,  his  proportionate  share  of  the  face  liability  may  properly 
be  withheld  from  the  appraisal,  but  the  order  fixing  the  tax  should 
recite  that  determination  of  the  matter  is  suspended  until  the  liti- 
gation is  ended:  Estate  of  Wormser,  28  Misc.  Rep.  608,  59  N.  Y. 
Supp.  1088. 

*  In  Brown  v.  Kinney,  128  Fed.  310,  it  is  decided  that  where  the 
decedent  had  agreed  to  pay  mortgages  on  real  estate  as  part  of 
the  purchase  price  thereof,  for  which  mortgages  his  grantors  were 
liable,  they  constituted  a  debt  against  the  estate,  and  that  the 
amount  paid  by  the  executor  to  discharge  them  was  to  be  deducted 
from  the  residuary  legacy  in  assessing  the  United  States  legacy  tax. 

In  McCurdy  v.  McCurdy,  197  Mass.  248,  14  Ann.  Cas.  859,  16  L. 
R.  A.,  N.  S.,  329,  83  N.  E.  881,  where  a  nonresident  left  real  property 
in  Massachusetts  subject  to  a  mortgage,  it  was  decided  that  the 
succession  tax  should  be  computed  upon  the  value  of  the  equity  of 
redemption,  that  being  the  extent  of  the  decedent's  interest  at  the 
time  of  his  death. 


314  INHERITANCE  TAXATION. 

now  generally  prevailing  is,  that  an  heir  or  devisee 
of  real  estate  subject  to  a  mortgage  must  satisfy  and 
discharge  the  encumbrance  out  of  his  own  property, 
without  resorting  to  the  executor  or  administrator  to 
have  payment  made  from  the  funds  or  personalty  of 
the  estate.  This  is  the  law  in  New  York,  and  it  has 
there  been  held  that  a  mortgage  on  real  estate  should 
be  deducted  from  the  value  of  the  encumbered  realty 
in  fixing  the  taxable  value  of  the  realty,  and  that  it 
should  not  be  deducted  from  the  amount  of  the  per- 
sonal estate  for  the  purpose  of  ascertaining  the  tax- 
able value  of  the  personal  property.  Therefore,  if 
the  equity  of  an  heir  or  devisee  in  real  estate,  after 
deducting  the  mortgage  thereon,  is  less  than  the  ex- 
emption allowed  under  the  inheritance  tax  law,  he  is 
not  liable  to  the  tax.8 

This  seems  obviously  just  and  reasonable.  But  in 
Michigan  it  has  been  determined,  by  a  divided  court, 
that  a  debt  secured  by  real  estate  mortgage  should 
be  deducted  from  the  personal  estate  in  ascertaining 
the  amount  upon  which  the  inheritance  tax  should  be 
paid.  The  court  declares  that  in  Michigan  the  net 
personal  estate  for  distribution  consists  of  the  per- 
sonal property  of  the  deceased  after  all  debts  and  ex- 
penses have  been  met,  including  the  debts  secured  by 
mortgage  upon  real  estate,  such  debts  being  a  charge 
upon  the  personal  estate,  as  well  as  unsecured  debts; 
and  that  the  intent  and  purpose  of  the  inheritance  tax 

«  Estate  of  Livingstone,  1  App.  Div.  568,  37  N.  Y.  Supp.  463; 
Estate  of  Sutton,  3  App.  Div.  208,  38  N.  Y.  Supp.  277;  Estate  of 
Kene,  8  Misc.  Rep.  102,  29  N.  Y.  Supp.  1078;  Estate  of  Maresi,  74 
App.  Div.  76,  77  N.  Y.  Supp.  76.  A  direction  by  a  testator  in  his 
will  to  executors  to  pay  mortgages  upon  real  estate  does  not  author- 
ize the  transfer  tax  appraiser  to  deduct  the  amount  so  paid  from 
the  value  of  the  personal  property  in  order  to  determine  the  value 
of  the  succession  to  the  personalty:  Estate  of  Berry,  23  Misc.  Rep. 
230,  91  N.  Y.  Supp.  1132.  This  holding  hardly  seems  sustainable, 
except  on  the  ground  that  the  encumbered  real  estate  was  not  sub- 
ject to  the  tax,  while  the  personal  property  was. 


DEDUCTIONS  FROM  VALUATION.  315 

statute  is  to  tax  the  personal  estate  subject  to  such 
deductions  as  should  be  made  directly  under  the  gen- 
eral statutes  of  distribution.  The  Michigan  court  ex- 
presses the  opinion  that  the  conclusion  of  the  New 
York  courts  that  the  amount  of  the  mortgage  is  not  to 
be  deducted  from  the  personal  property  in  determining 
the  amount  to  be  taxed  is  based,  in  large  part  at  least, 
upon  the  fact  that  under  the  statutes  of  distribution  of 
that  state  the  real  estate,  not  the  personal  property, 
is  chargeable  with  the  mortgage  debt.8 

§  274.  Debts  Owing  by  Nonresident  Decedents. — 
In  the  case  of  a  nonresident  decedent,  the  New  York 
practice  has  been  to  deduct  from  the  New  York  assets 
all  debts  owing  by  him  to  New  York  creditors.10  ' '  The 
deduction  to  be  made  for  debts  owing  to  nonresident 

•  Estate  of  Fox,  159  Mich.  420,.  124  N.  W.  60. 

i«  Estate  of  Grosvenor,  124  App.  Div.  331,  108  N.  Y.  Supp.  926, 
affirmed,  193  N.  Y.  652,  86  N.  E.  1124.  In  ascertaining  the  amount 
and  value  of  property  which  passes  as  part  of  the  estate  of  a  non- 
resident estate,  and  to  which  the  transfer  tax  applies,  all  indebted- 
ness to  persons  within  the  state  may  be  deducted:  Estate  of  Burden, 
47  Misc.  Eep.  329,  95  N.  Y.  Supp.  972. 

In  assessing  stocks  and  bonds  of  domestic  corporations,  owned  by 
a  nonresident  decedent  but  actually  located  within  the  state,  it  has 
been  adjudged  in  New  York  that  no  deduction  should  be  made  for 
debts  of  the  decedent  due  to  residents  of  the  state  and  secured  in  part 
by  a  pledge  of  bonds  actually  located  in  New  York,  and  in  part  by 
a  pledge  of  stock  in  foreign  corporations,  where  the  value  of  the 
pledged  securities  is  greater  than  the  indebtedness  and  the  assets 
of  the  estate  are  five  times  its  liabilities:  Estate  of  Pullman,  46  App. 
Div.  574,  62  N.  Y.  Supp.  395. 

It  has  also  been  decided  in  New  York  that  where  a  decedent  was 
a  resident  of  Illinois  and  was  a  member  of  a  partnership  which  had 
a  branch  in  Chicago  and  another  in  the  city  of  New  York,  and  the 
New  York  branch  was  mainly  concerned  in  manufacturing  and  in- 
curred a  large  indebtedness,  while  the  Chicago  branch  for  the  most 
part  sold  and  distributed  the  manufactured  products  and  thereby 
made  collections  in  excess  of  outlays,  as  a  result  of  which  the  debts 
owing  to  New  York  creditors  exceeded  the  value  of  the  New  York 
assets,  no  transfer  tax  could  be  collected:  Estate  of  King,  71  App. 
Div.  581,  76  N.  Y.  Supp.  220,  affirmed,  172  N.  Y.  616,  64  N.  E.  1122. 


316  INHERITANCE  TAXATION. 

creditors,  mortuary  expenses,  commissions  on  prop- 
erty without  the  state  and  other  administration  ex- 
penses in  respect  to  such  property,  should  be  in  the 
proportion  which  the  net  New  York  estate  (after  all 
deductions  are  made  for  debts  owing  to  resident  credit- 
ors, New  York  commissions  and  New  York  administra- 
tion expenses)  bears  to  the  entire  or  gross  estate,  wher- 
ever situated."  " 

Under  the  collateral  inheritance  tax  law  of  Tennes- 
see it  has  been  adjudged  that  in  case  a  part  of  the 
property  of  a  nonresident  decedent  passes  to  collateral 
legatees,  the  executor  should  not  deduct  therefrom 
Tennessee  debts  owing  by  the  decedent  at  the  time 
of  his  death  which  the  executor  pays  prior  to  the  in- 
stitution of  proceedings  to  assess  the  tax,  in  the  ab- 
sence of  evidence  that  such  payment  was  made  from 
Tennessee  assets.12 

The  marshaling  of  assets,  in  the  case  of  nonresident 
decedents  leaving  assets  in  the  state,  is  further  dis- 
cussed in  a  previous  section.13 

§  275.  Apportionment  Between  Exempt  and  Non- 
exempt  Assets. — In  the  event  that  the  personal  estate 
of  a  decedent  consists  in  .part  of  exempt  government 
bonds,  the  debts,  expenses  of  administration,  and  com- 
missions should,  it  has  been  decided,  be  apportioned 
ratably  between  the  government  bonds  and  the  other 
personalty,  in  ascertaining  the  taxable  value  of  the 
succession.14 

§  276.    Expenses  of  Funeral  and  Interment. — The 

funeral  expenses  of  the  decedent,  and  also  reasonable 
sums  expended  for  a  burial  lot  and  the  erection  of  a 

11  Estate  of  Potter,  67  Misc.  Rep.  19,  124  N.  Y.  Supp.  676. 
«  Memphis  Trust  Co.  v.  Speed,  114  Tenn.  677,  88  S.  W.  321. 
«  See  sec.  174,  ante. 
"  Estate  of  Purdy,  24  Misc.  Eep.  301,  53  N.  Y.  Supp.  735. 


DEDUCTIONS  FROM  VALUATION.  317 

suitable  monument,  are  properly  deducted  from  the 
value  of  his  estate  in  fixing  the  amount  of  the  inherit- 
ance tax.15 

§  277.  Expenses  of  Administration. — The  expenses 
of  administration  are  also  to  be  deducted  from  the 
value  of  the  decedent's  estate,  for  the  purpose  of  deter- 
mining on  what  valuation  the  inheritance  tax  is  to 
be  computed;  for  the  amount  which  they  represent 
never  actually  passes  to  the  heirs,  devisees  or  lega- 
tees, and  therefore  is  not  subject  to  taxation.16  "The 
tax  is  based,  not  on  the  gross  amount  of  the  claims 
made  on  behalf  of  the  estate,  but  on  the  amounts  actu- 
ally transferred  by  operation  of  our  laws  to  the  parties 
interested  in  the  estate.  Every  just  and  proper  dis- 
bursement made  by  an  executor  or  administrator,  as 
a  necessary  or  proper  expense  of  administration,  to 
which  the  executor  or  administrator  will  be  entitled  to 
be  credited  on  his  accounting  with  his  cestui  que  trust, 
must  also  be  credited  in  appraising  the  values  of  the 
interests  transferred  to  the  cestui  que  trust  for  pur- 
poses of  taxation."17 

However,  the  declaration  in  the  Massachusetts  stat- 
ute that  no  estate  shall  be  subject  to  the  provisions 
of  the  statute  unless  its  value,  "after  the  payment  of 
all  debts,"  shall  exceed  the  sum  of  ten  thousand  dol- 
lars, has  been  construed  to  mean  that  only  the  debts, 
not  the  expenses  of  administration,  are  to  be  deducted 
for  the  purpose  of  determining  whether  the  estate 
is  taxable;  and  yet  for  the  purpose  of  ascertaining  on 
what  amount  the  tax  is  to  be  computed,  in  the  event 

i*  See  sec.  61,  ante. 

i«  See  sec.  270,  ante;  Appeal  of  Hopkins,  77  Conn.  644,  60  Atl.  657; 
Hooper  v.  Bradford,  178  Mass.  95,  59  N.  E.  678;  Estate  of  Dimon, 
82  App.  Div.  107,  81  N.  Y.  Supp.  428,  suggesting  the  proper  prac- 
tice where  disbursements  made  by  the  executor  are  questioned. 

«  Estate  of  Thomas,  39  Misc.  Kep.  223,  79  N.  Y.  Supp.  571. 


318  INHERITANCE  TAXATION. 

that  the  estate  is  taxable,  the  expenses  of  administra- 
tion must  be  deducted.18 

In  determining  the  amount  of  the  expenses  of  admin- 
istration, the  practice  is  to  add  to  the  expenses  already 
incurred  the  estimated  amount  that  will  yet  be  ex- 
pended before  the  estate  is  closed.18 

§  278.  Fees  and  Disbursements  of  Temporary  Ad- 
ministrator.— Where  a  temporary  administrator  is 
appointed  in  proceedings  arising  upon  the  contest  of 
the  decedent's  will,  his  commissions  and  disbursements 
are  properly  deducible  in  determining  the  value  of  the 
estate  for  purposes  of  the  transfer  tax.  The  amount 
which  they  represent  never  reaches  the  legatees  or 
next  of  kin,  and  hence  they  should  not  be  taxed  on 
account  of  it.20 

§  279.  Expenses  of  Litigation  or  Will  Contest. — 
The  deduction  of  the  expenses  of  litigation  and  of  will 
contests,  in  estimating  the  value  of  estates  of  decedents 
for  the  purpose  of  the  inheritance  tax,  has  been  touched 
upon  in  a  previous  chapter;  so  has  the  compromise  of 
adverse  claims,  as  affecting  the  tax.21  The  general 
rule  is,  that  disbursements  honestly  and  properly  made 
by  an  executor  in  defending  the  will,  or  by  an  executor 
or  administrator  in  litigating,  to  assert  a  right  of  the 
estate,  or  to  defeat  an  attack  upon  it,  or  even  in  buy- 
ing peace  for  the  estate,  should  be  allowed  as  a  deduc- 
tion in  proceedings  to  fix  the  inheritance  tax.  Such 
disbursements  are  included  in  the  necessary  and  proper 
expenses  of  administration,  which  are  allowable  in  the 
accounts  of  the  personal  representative  and  are  not 
subject  to  taxation  because  the  amount  represented  by 

i«  Callahan  v.  Woodbridge,  171  Mass.  595,  51  N.  E.  176. 
i»  Estate  of  Gould,  19  App.  Div.  352,  46  N.  Y.  Supp.  506,  156  N. 
Y.  423,  51  N.  E.  287. 

20  Estate  of  Gihon,  169  N.  Y.  443,  62  N.  E.  561. 

21  gee  sees.  158-161,  ante. 


DEDUCTIONS  FROM   VALUATION.  319 

them  does  not  really  pass  to  the  successors  of  the  de- 
cedent.22 

The  costs  and  expenses  of  an  action,  instituted  by 
an  executor  to  obtain  a  judicial  construction  of  the 
will  and  instructions  as  to  the  distribution  of  the  es- 
tate, which  action  was  brought  in  good  faith  and  has 
been  fully  justified  by  the  results,  may  be  deducted  as 
a  necessary  expense  of  litigation.23 

It  is  quite  another  thing,  however,  to  deduct  the 
expenses  incurred  by  heirs  in  waging  a  will  contest 
or  in  carrying  on  litigation  among  themselves.  Hence 

2z  Connell  v.  Crosby,  210  HI.  380,  71  N.  E.  350;  Estate  of  Thomas, 
39  Misc.  Hep.  223,  79  N.  Y.  Supp.  571;  Shelton  v.  Campbell,  109 
Term.  690,  72  S.  W.  112.  Said  the  court  in  this  last  case:  "We  are 
of  opinion,  however,  that  the  estate  is  liable  for  the  tax  only  to 
the  extent  of  its  clear  value,  and  that  clear  value  means  net  value 
after  the  payment  of  all  debts  and  expenses  of  administration,  or 
execution  of  the  will  in  case  of  testacy,  and  in  cases  where  the  will 
is  contested  and  expenses  for  attorneys'  fees,  etc.,  are  incurred  by 
the  executor  in  attempting  to  sustain  the  will,  these  fees  and  ex- 
penses must  be  treated  as  expenses  of  administration,  and  deducted 
from  the  amount  of  the  estate  in  order  to  reap  its  clear  value.  In 
such  case  it  is  the  duty  of  the  executor  and  clerk  of  the  county  court 
to  make  an  estimate  of  such  fees  and  expenses,  and  to  tentatively 
allow  for  them,  and  thus  approximate  the  amount  of  tax  to  be  paid; 
and  this  amount  should  be  paid  subject  to  revision  upon  final  state- 
ment and  settlement  of  accounts." 

In  Estate  of  Marks,  40  Misc.  Rep.  507,  82  N.  Y.  Supp.  803,  it  is 
held  that  money  paid  a  niece  of  the  testator  by  proponents  of  his 
will  to  induce  her  to  withdraw  objections  to  the  probate  is  not 
deductible.  The  court  said:  "The  person  named  in  the  unprobated 
paper  as  executor  had  no  authority,  implied  from  that  circumstance, 
to  make  such  a  contract,  and  the  agreement  was  valid  only  because 
the  beneficiaries  under  the  will  joined  in  it.  The  payment  was, 
therefore,  a  payment  out  of  the  property  transferred  to  the  bene- 
ficiaries in  satisfaction  of  their  own  contract  obligation,  and  was 
not  an  expense  of  administering  the  estate  or  deductible  from  the 
appraisal." 

In  Estate  of  Wormser,  51  App.  Div.  441,  64  N.  Y.  Supp.  897,  the 
exemption  from  the  inheritance  tax  of  a  sum  as  an  allowance  for 
the  compromise  of  the  claim  was  held  erroneous,  because  the  evi- 
dence establishing  the  claim  and  of  an  intention  to  enforce  it  was 
not  sufficient. 

a»  Estate  of  Maresi,  74  App.  Div.  76,  77  N.  Y.  Supp.  76. 


320  INHERITANCE  TAXATION. 

it  has  been  affirmed  that  a  sum  expended  by  the  next 
of  kin  in  successful  litigation  over  a  will,  although 
the  court  charges  costs  and  allowances  in  their  favor 
upon  the  estate,  cannot  be  deducted  in  valuing  the 
estate  for  the  purpose  of  the  inheritance  tax.  "It 
was  not  a  claim  existing  against  the  decedent  or  his 
property.  The  tax  imposed  by  the  statute  is  upon  the 
interest  transferred  by  will  or  under  the  intestate  law 
of  the  state.  The  devolution  of  the  property  and  the 
right  of  the  state  have  their  origin  at  the  same  moment 
of  time.  The  ascertainment  of  the  value  of  the  tax- 
able interest  and  the  fixing  of  the  tax  necessarily  takes 
place  subsequent  to  the  death.  But  the  guide  is  the 
value  at  the  time  of  the  death,  when  the  interests  were 
acquired.  The  fact  that  the  appellants  (next  of  kin) 
were  put  to  expense  in  asserting  their  rights  and  were 
embroiled  in  expensive  litigation  to  obtain  them,  was 
their  misfortune.  It  did  not  diminish  the  value  of  the 
interests  which  devolved  upon  them  on  the  decedent's 
death.  It  was  a  loss,  but  a  loss  to  their  general  estate. 
It  did  not  prevent  them  receiving  the  whole  interest 
transmitted  to  them.  The  fact  that  the  court  charged 
certain  costs  and  allowances  in  their  favor  upon  the 
estate  did  not  change  the  situation.  It  was  practically 
a  charge  upon  their  own  property  for  the  benefit  of 
their  attorneys."  2* 

Neither  will  the  expense  of  litigation  among  dis- 
tributees, including  counsel  fees,  be  deducted  from  the 
estate.25  "Upon  the  death  of  the  decedent,  intestate, 
his  estate  passed,  by  operation  of  law,  to  his  heirs  and 
next  of  kin,  subject,  however,  to  the  payment  of  his 
legal  debts,  reasonable  funeral  charges,  and  legitimate 
expenses  of  administration.  Such  charges  diminished 
the  actual  value  of  the  estate  passing  to  those  entitled. 

a*  Estate  of  Westurn,  152  N.  Y.  93,  46  N.  E.  315. 
«  Estate  of  Lines,  155  Pa.  378,  26  AtL  728. 


DEDUCTIONS  FROM  VALUATION.  321 

Aside  from  such  deductions,  the  right  of  the  state  to 
collect  the  tax  in  accordance  with  the  statutory  rates 
and  provisions  attaches  to  the  total  value  of  the  estate; 
the  rights  of  the  state  and  of  the  distributees  become 
fixed  and  established  at  the  same  instant  and  imme- 
diately upon  the  death  of  the  intestate.  If  a  contro- 
versy subsequently  arises  as  to  the  relative  rights  of 
distributees,  involving  expense  and  litigation,  the 
rights  of  the  state  cannot  be  prejudiced  or  impaired 
thereby.  It  is  still  entitled  to  the  tax  upon  the  full 
amount  passing  originally  under  the  intestate  laws. 
While  such  a  controversy  may  diminish  the  individual 
distributive  shares,  the  misfortune  is  that  of  the  indi- 
vidual, and  in  that  regard  is  the  same  as  any  other 
necessary  expenditure  in  protecting  one's  property 
rights.  Any  other  rule  would  permit  litigating  ele- 
ments to  consume  an  entire  estate  with  costs  and 
disbursements,  entirely  defeating  the  claim  of  the 
state."28 

§  280.  Compensation  of  Executors  or  Administra- 
tors.— The  authorities  are  agreed  that  the  commission 
or  compensation  of  an  executor  or  administrator  should 
be  deducted  from  the  estate  of  the  decedent  in  deter- 
mining its  value  for  the  purpose  of  inheritance  taxa- 
tion, for  it  is  earned  in  administering  the  estate  and 
may  properly  be  regarded  as  one  of  the  expenses  of 
administration."  But  in  case  a  testator  makes  a  be- 
quest to  his  executors  or  trustees  in  lieu  of  compen- 

26  Estate  of  Sanford,  66  Misc.  Rep.  3&5,  123  N.  Y.  Supp.  284. 

27  See  sec.  270,  ante;   State  v.  Probate  Court,  101  Minn.  485,  112 
N.  W.  878;  Estate  of  Purdy,  24  Misc.  Rep.  301,  53  N.  Y.  Supp.  735. 
It  has  been  decided  in  New  York  that,  while  for  the  purpose  of  the 
tax,  the  estate  must  be  valued  as  of  the  time  of  the  death  of  the 
decedent,  yet  whether  each   of  three  executors  shall  receive  a  full 
commission,  to  be  deducted  from  the  value  of  the  estate  in  assess- 
ing the  tax,  is  to  be  determined  by  the  value  of  the  estate  which 
they  administer,  so  that  an  increase  in  the  value  between  the  time  of 

ai 


322  INHERITANCE  TAXATION. 

sation,  the  excess  of  this  gift  over  and  above  a  reason- 
able compensation  for  their  services  is  taxable.28 

§  281.  Compensation  of  Trustees. — In  New  York 
the  view  has  been  taken  that  the  commissions  of  trus- 
tees under  a  will  are  to  be  deducted  in  assessing  the 
inheritance  tax.  This  is  thought  to  be  a  necessary 
implication  from  the  rule  of  the  statute  that  any  be- 
quest or  devise  to  trustees  in  excess  of  their  commis- 
sions allowed  by  law  shall  be  taxable.29  But  in  Minne- 
sota, where  property  of  an  estate  is  committed  to  a 
trustee  for  a  definite  period,  to  be  by  him  managed 
and  controlled  for  the  benefit  of  those  to  whom  it  passes 
by  will,  the  compensation  of  the  trustee  fixed  by  the 
will  is  not  a  proper  item  to  deduct  from  the  valuation 
of  the  estate.  "The  expenses  of  the  administration 
of  the  estate  of  a  deceased  person,"  said  the  court, 
"are  proper  to  be  deducted  in  ascertaining  the  value 
of  the  estate  for  the  purposes  of  taxation  under  the 
inheritance  tax  law.  But  the  compensation  of  a  trus- 
tee, earned,  not  in  the  administration  of  the  estate,  but 
in  the  management  thereof  for  the  benefit  of  the  lega- 
tees or  devisees,  does  not  come  properly  within  the 
class  or  reason  for  exempting  administration  expenses. 
The  trustee  is  authorized  by  the  will  to  manage  and 
control  the  estate  in  the  ordinary  manner  of  conduct- 
ing trusts,  and,  if  deemed  prudent  withiri  his  opinion, 

the  death  and  the  date  of  the  issuance  of  letters  is  to  be  considered: 
Estate  of  Van  Pelt,  63  Misc.  Kep.  616,  118  N.  Y.  Supp.  655. 

When  no  proof  it  made,  upon  the  appraisal  of  assets  in  the  state 
owned  by  a  nonresident  decedent,  as  to  the  rate  of  executors'  com- 
missions in  the  foreign  state,  the  appraiser  should  make  a  deduction, 
based  upon  the  relative  amount  of  property  in  this  state,  at  the  rate 
of  commissions  allowed  in  this  state:  Estate  of  Kennedy,  20  Misc. 
Rep.  531,  46  N.  Y.  Supp.  906. 

as  See  sec.  163,  ante. 

20  Estate  of  Gihon,  169  N.  Y.  443,  62  N.  E.  561;  Estate  of  Silli- 
man,  79  App.  Div.  98,  80  N.  Y.  Supp.  336;  Estate  of  Shields,  68  Misc. 
Kep.  264,  124  N.  Y.  Supp.  1003. 


DEDUCTIONS  FROM  VALUATION.  323 

to  continue  the  business  theretofore  carried  on  lay  the 
testator.  Services  rendered  in  that  behalf  have  no 
reference  to  closing  the  estate  for  the  purpose  of  dis- 
tribution thereof  to  those  entitled  to  it  and  are  not 
required  or  essential  to  the  perfection  of  the  rights  of 
the  heirs  or  legatees.  The  expenses  of  administration 
are  imposed  as  a  matter  of  law,  and  are  caused  by  the 
use  of  the  legal  machinery  provided  by  the  state  to 
wind  up  the  affairs  of  deceased  persons,  and  cannot 
ordinarily  be  avoided;  hence  it  is  just  that  they  should 
be  deducted  from  the  valuation  of  the  estate.  Trusts, 
however,  of  the  character  of  that  here  before  the  court, 
are  created  for  the  benefit  of  those  to  whom  the  prop- 
erty ultimately  passes,  are  of  voluntary  creation,  and 
intended  for  the  preservation  of  the  estate.  No  sound 
reason  is  given  to  support  the  contention  that  such 
expenses  should  be  taken  into  consideration  in  fixing 
the  value  of  the  estate  for  the  purpose  of  this  tax."  80 

§  282.  Commissions  of  Brokers. — In  the  event  that 
a  sale  of  property  of  a  decedent  is  necessary  and  an 
act  of  administration,  the  commissions  of  a  broker  for 
finding  a  purchaser  may  be  regarded  as  a  proper  ex- 
pense of  administration  and  deducted  from  the  estate 
in  determining  its  taxable  value.  In  the  cases  where 
this  has  been  held  to  be  the  law,  the  will  gave  the 
executors  a  power  of  sale.31 

§  283.  Property  Taxes  Paid  by  Executor.— Taxes 
on  the  real  estate  of  a  decedent,  which  were  due  and 
payable  at  the  time  of  his  death  and  have  been  paid 
by  his  executor,  should  be  deducted  in  fixing  the  value 
of  his  estate  for  purposes  of  inheritance  taxation." 

»o  State  v.  Probate  Court,  101  Minn.  485,  112  N.  W.  878. 
»i  Estate  of  Rothschild,  63  Misc.  Rep.  615,  118  N.  Y.   Supp.  654; 
Estate  of  Shields,  68  Misc.  Rep.  264,  124  N.  Y.  Supp.  1003. 
82  Estate  of  Liss,  39  Misc.  Rep.  123,  78  N.  Y.  Supp.  969. 


324  INHERITANCE  TAXATION. 

If,  at  the  time  of  the  death,  the  assessment  is  complete 
and  has  passed  the  stage  when  any  change  therein  can 
be  made,  the  tax  would  seem  a  debt  proper  for  the 
personal  representative  to  pay  in  course  of  adminis- 
tration and  proper  to  deduct  in  valuing  the  estate  for 
the  inheritance  tax;  but  a  general  assessment,  which 
has  not  been  advanced  to  that  stage  of  finality  at  the 
time  of  the  decease,  is  not  a  debt  to  be  so  deducted. 
"Taxation  cannot  create  a  debt  until  there  is  a  tax 
fixed  in  amount  and  perfected  in  all  respects.  It  is  not 
enough  to  lay  the  foundation,  but  the  structure  must 
be  built."88 

§  284.  United  States  Succession  Tax. — The  Massa- 
chusetts practice  has  been  to  deduct  the  legacy  tax, 
paid  to  the  United  States  under  the  revenue  act  of 
1898,  from  the  estate  of  a  decedent  in  appraising  it  for 
the  state  succession  tax.  This  seems  to  be  a  reason- 
able procedure  and  has  been  approved  on  at  least  one 
occasion  in  New  York.34  There  can  be  no  doubt, 
however,  that  a  state  may  decline  to  make  such  de- 
duction, and  the  New  York  courts  generally  have  so 
declined.38 

§  285.  Homestead,  Exemptions,  and  Family  Allow- 
ance.— Money  paid  by  order  of  the  probate  court  as 

»s  Estate  of  Maresi,  74  App.  Div.  76,  77  N.  Y.  Supp.  76;  Estate  of 
Hoffman,  42  Misc.  Eep.  90,  85  N.  Y.  Supp.  1082;  Estate  of  Freund, 
143  App.  Div.  335,  128  N.  Y.  Supp.  48,  affirmed,  202  N.  Y.  556,  95 
N.  E.  1129. 

According  to  Estate  of  Brundage,  31  App.  Div.-  348,  52  N.  Y.  Supp. 
362,  a  deduction  should  be  made  of  taxes  levied  after  the  death  of 
the  decedent,  under  an  assessment  made  against  him  before  his  de- 
cease, and  paid  by  the  executor  from  the  estate. 

s*  Hooper  v.  Shaw,  176  Mass.  190,  57  N.  E.  361;  Eetate  of  Gihon, 
33  Misc.  Eep.  206,  68  N.  Y.  Supp.  381,  64  App.  Div.  504,  72  N.  Y. 
Supp.  1104,  169  N.  Y.  443,  62  N.  E.  561. 

83  Estate  of  Becker,  26  Misc.  Rep.  633,  57  N.  Y.  Supp.  940;  Estate 
of  Irish,  28  Misc.  Rep.  647,  60  N.  Y.  Supp.  30;  Estate  of  Curtis,  31 


DEDUCTIONS  FROM  VALUATION.  325 

an  allowance  to  the  family  of  the  decedent,  property 
exempt  to  them  under  the  law,  and  the  homestead  set 
apart  for  their  use,  do  not  pass  by  will  or  by  the  intes- 
tate laws,  and  should  be  deducted  from  the  estate  in 
estimating  its  value  for  the  purpose  of  assessing  the 
inheritance  tax.  This  question  has  been  considered  in 
a  previous  chapter.38 

§  286.  Property  Misappropriated  by  Executor. — 
The  supreme  court  of  California  has  ruled  that  since 
the  right  of  the  state  to  the  inheritance  tax  accrues 
at  the  moment  of  death,  and  is  measured  as  to  any 
beneficiary  by  the  value  at  that  time  of  such  property 
as  actually  passes  to  him,  the  loss  or  destruction  of  a 
part  of  the  property  before  actual  delivery  of  posses- 
sion to  him  cannot  affect  the  amount  of  the  tax,  any 
more  than  would  a  material  depreciation  in  value. 
Therefore,  where  the  executor  misappropriates  a  por- 
tion of  the  estate,  the  value  of  the  property  so  lost 
should  be  included  in  computing  the  tax.37 

Misc.  Eep.  83,  64  N.  Y.  Supp.  574;  Estate  of  Vanderbilt,  71  App. 
Div.  611,  75  N.  Y.  Supp.  969,  172  N.  Y.  69,  64  N.  E.  782. 

as  See  sees.  59,.  60,  ante. 

»T  Estate  of  Hite,  159  Cal.  392,  113  Pac.  1072. 


326  INHERITANCE  TAXATION. 


CHAPTER  XIX. 

VACATION    AND    MODIFICATION    OF    ORDERS    OR 

DECREES. 

§  290.  Conclusiveness  of  Orders  and  Decrees. 

§  291.  Vacation  or  Setting  Aside  of  Orders  and  Decrees. 

§  292.  Modification   of   Orders  and  Decrees. 

§  293.  Correction  of  Valuation  of  Property. 

§  290.    Conclusiveness  of   Orders   and   Decrees. — 

Where  the  statutes  confer  jurisdiction  on  a  court  to 
hear  and  determine  all  questions  in  relation  to  inherit- 
ance taxes,  the  orders  or  judgments  of  that  court  in 
the  matter  of  appraising  the  estate  and  assessing  the 
tax,  whether  it  is  a  probate  court  or  a  court  of  general 
jurisdiction,  have  that  quality  of  finality  and  Conclu- 
siveness possessed  by  other  judgments  or  orders,  and, 
unless  appealed  from  or  attacked  on  motion  within 
the  time  prescribed  by  law,  they  cannot  be  questioned, 
except  for  reasons  which  will  warrant  intervention  by 
a  court  of  equity,  by  the  parties  in  subsequent  pro- 
ceedings for  the  collection  of  the  tax  assessed.1 

"The  appraisement  proceeding,"  to  adopt  the  lan- 
guage of  a  New  York  judge,  "furnishes  an  opportunity 
to  the  parties  interested  in  the  estate,  on  the  one 

i  Becker  v.  Nye,  8  Gal.  App.  129,  96  Pac.  333;  Port  Huron  v. 
Wright,  150  Mich.  279,  114  N.  W.  76;  Estate  of  Wolfe,  137  N.  Y. 
205,  33  N.  E.  156;  Estate  of  Lawrence,  96  App.  Div.  29,  88  N.  Y. 
Supp.  1028;  Estate  of  Moneypenny,  181  Pa.  309,  37  Atl.  589.  To 
the  same  effect,  see  Estate  of  Miller,  110  N.  Y.  216,  18  N.  E.  139; 
Estate  of  Racket,  14  Misc.  Kep.  282,  35  N.  Y.  Supp.  1051;  Estate 
of  Lawrence,  96  App.  Div.  29,  88  N.  Y.  Supp.  1028. 

The  establishment  by  a  court  of  the  inheritance  tax  payable  from  an 
estate  is  an  adjudication  upon  that  subject  which  binds  the  state  as  well 
as  the  estate  as  to  all  questions  passed  upon:  Estate  of  Gordon,  2  Cof. 
Pro.  138. 

The  fact  that  the  surrogate,  upon  the  basis  of  the  executor's  affi- 
davit, orally  expresses  the  opinion  that  an  estate  is  too  small  to  be 
taxable,  does  not  preclude  subsequent  proceedings  to  assess  a  tax, 


VACATION  AND  MODIFICATION  OP  ORDERS  OR  DECREES.         327 

hand,  and  the  state  on  the  other,  to  inquire  fully  as  to 
the  value  of  the  property  at  the  time  of  the  decedent's 
death,  and  to  obtain  and  present  such  testimony  as 
may  aid  in  the  ascertainment  of  such  value.  Upon  the 
proofs  thus  taken  the  appraiser  makes  his  report  and 
the  surrogate  enters  an  order  assessing  and  fixing  the 
tax.  This  order  is  an  adjudication  in  respect  to  the 
liabilities  thereby  fixed,  and  unless  an  appeal  is  taken 
therefrom  is  conclusive  on  all  parties  thereto."  2  Such 
judicial  determination,  though  of  a  court  of  limited 
jurisdiction,  "may  be  treated  no  more  lightly  than  the 
solemn  determinations  of  courts  of  record,  and  for 
fraud,  newly  discovered  evidence,  and  the  like,  should 
be  set  aside  and  new  hearings  granted  only  under  cir- 
cumstances similar  to  those  that  are  held  sufficient  to 
warrant  the  granting  of  a  new  trial  in  courts  of 
record. ' '  * 

The  law  has  been  found  otherwise  in  New  Jersey. 
There  the  act  of  the  surrogate  in  assessing  a  legacy  tax 
is  not  a  judgment  which  will  conclude  the  legatee  from 
contesting  his  liability  for  the  tax,  when  called  upon 
to  show  cause  before  the  orphans'  court  why  the  tax 
should  not  be  decreed  to  be  paid,  and  this  notwith- 

if  no  decree  was  entered  exempting  or  taxing  the  estate:  Estate 
of  Schmidt,  39  Misc.  Rep.  77,  78  N.  Y.  Supp.  879. 

According  to  Stinger  v.  Commonwealth,  26  Pa.  429,  the  appraise- 
ment of  the  estate  of  a  decedent,  directed  by  the  register,  under  the 
collateral  inheritance  laws,  unappealed  from,  is  conclusive  .only  as  to 
the  value  of  the  estate,  but  not  of  liability  to  taxation. 

According  to  Estate  of  Davis,  91  Hun,  53,  36  N.  Y.  Supp.  822,  a 
surrogate  may  himself  determine  the  value  of  an  estate,  or  he  may 
do  this  by  the  aid  of  an  appraiser;  when  he  adopts  the  latter  method 
and  applies  to  the  superintendent  of  insurance  to  have  him  deter- 
mine the  value  of  a  future  estate,  the  determination  of  the  super- 
intendent is  final.  Either  method  is  complete  in  itself;  and  when 
one  is  adopted,  it  precludes  any  resort  to  the  other. 

2  Estate  of  Rice,  56  App.  Div.  253,  29  Misc.  Rep.  404,  61  N.  Y. 
Supp.  911,  68  N.  Y.  Supp.  1147. 

»  Estate  of  Barnum,  129  App.  Div.  418,  114  N.  Y.  Supp.  33. 


328  INHERITANCE  TAXATION.      4 

standing  he  has  failed  to  appeal  from  the  assessment 
of  the  surrogate  within  the  time  limited  by  law.* 

§  291.  Vacation  or  Setting  Aside  of  Orders  and 
Decrees. — Undoubtedly  the  orders  and  decrees  of  the 
court  in  proceedings  to  appraise  the  estate  of  a  dece- 
dent and  assess  the  inheritance  tax  may,  in  common 
with  the  judicial  determinations  of  courts  in  other  pro- 
ceedings, be  vacated  or  set  aside,  in  a  proper  case,  for 
fraud,  accident,  mistake,  newly  discovered  evidence, 
and  the  like.  They  are  not  less  vulnerable  to  attack 
on  these  grounds  than  are  orders  and  decrees  in  other 
judicial  proceedings.8  In  New  York  the  surrogate  has 
authority  to  vacate  an  order  attesting  and  fixing  the 
tax,  and  remit  the  matter  to  the  appraiser  for  rehear- 
ing and  reappraisement ;  but  this  power,  it  has  been 
said,  can  be  exercised  only  as  the  same  power  could 
be  by  a  court  of  record.  If  its  exercise  involves  dis- 
cretion, the  circumstances  under  which  the  determina- 
tion is  made  may  be  reviewed  to  ascertain  whether 
there  has  been  an  abuse  of  discretion.6 

Where  the  surrogate  inadvertently  confirms  an  ap- 
praiser's report  which  is  defective  in  not  showing 
whether  all  property  subject  to  the  tax  is  embraced 

*  Estate  of  Landis,  66  N.  J.  Eq.  291,  56  Atl.  1039. 

5  Estate  of  Bruce,  59  N.  Y.  1083;  Estate  of  Scrimgeour,  175 
N.  Y.  507,  67  N.  E.  1089;  Estate  of  Backhouse,  110  App.  Div.  737, 
96  N.  Y.  Supp.  466,  affirmed,  185  N.  Y.  544,  77  N.  E.  1181. 

e  Estate  of  Barnum,  129  App.  Div.  418,  114  N.  Y.  Supp.  33. 
Usually  an  order  setting  aside  a  determination  on  the  ground  of 
newly  discovered  evidence  should  not  contain  an  adjudication  con- 
trary to  the  former  determination,  but  should  provide  for  a  new 
hearing  upon  which  both  parties  may  be  heard.  This  rule,  however, 
does  not  make  it  improper  for  a  surrogate,  when  incontrovertible 
evidence,  discovered  since  the  entry  of  an  order  imposing  the  tax, 
is  presented  to  him,  showing  that  the  estate  is  not  subject  to  taxa- 
tion, to  vacate  the  order,  and  make  it  necessary  for  him  to  remit 
the  matter  to  the  appraiser  to  make  the  computation  upon  which  the 
taxability  or  nontaxability  of  the  property  depends,  especially  as  the 
statute  authorizes  him  to  determine  the  amount  of  the  tax  without 


VACATION  AND  MODIFICATION  OP  ORDERS  OR  DECREES.         329 

therein,  he  has  power  to  vacate  his  order  of  confirma- 
tion and  send  the  report  back  to  the  appraiser  for 
confirmation.7  And  when  it  is  contended  that  certain 
interests  have  been  taxed  at  a  rate  lower  than  the 
statute  provides,  the  surrogate  has  power,  on  an  order 
to  show  cause,  to  set  aside  the  order  assessing  the  tax 
and  direct  a  reappraisal.8  He  may  vacate  a  void  order 
after  the  time  for  appeal  has  passed." 

There  appears  to  be  a  great  deal  of  uncertainty  in 
New  York  as  to  the  power  of  a  surrogate  to  open  his 
order  or  decree  fixing  the  value  of  an  estate  and  the 
tax  thereon,  in  order  that  it  may  be  shown  that  the 
appraisement  is  too  high  or  too  low.  This  question 
will  be  further  considered  in  the  following  section. 
Probably  the  better  rule  is,  that  a  reappraisement  will 
not  be  ordered  merely  because  subsequent  events  in- 
dicate that  the  first  appraisement  placed  a  valuation 
above  or  below  the  actual  or  market  value  of  the  prop- 
erty, although  there  is  at  least  one  decision  that  lends 
itself  to  a  contrary  interpretation.10  . 

It  has  been  decided  that  the  surrogate  cannot,  six 
years  after  the  entry  of  an  order  confirming  an  ap- 
praiser's report,  direct  an  appraisement  of  personal 
property  which  was  in  the  hands  of  the  executors  at 

appointing  an  appraiser:  Estate  of  Cameron,  97  App.  Div.  436,  89 
N.  Y.  Supp.  977,  affirmed,  181  N.  Y.  560,  74  N.  E.  1115. 

Before  the  surrogate  has  acted  upon  the  report  of  the  appraiser, 
it  is  within  his  discretion  to  remit  it  to  the  appraiser  for  the  in- 
troduction of  additional  evidence:  Estate  of  Kelly,  29  Misc.  Rep.  169, 
60  N.  Y.  Supp.  1005. 

i  Estate  of  Earle,  74  App.  Div.  458,  77  N.  Y.  Supp.  503.  But  where 
the  statute  does  not  require  the  administrator  to  aid  the  appraiser 
and  make  disclosure  as  to  the  assets  of  the  estate,  the  fact  that  he 
does  not  make  such  disclosure  is  not  ground  for  setting  aside  an 
appraisement:  Estate  of  Smith,  14  Misc.  Rep.  169,  35  N.  Y.  Supp.  701. 

•  Estate  of  Eaton,  55  Misc.  R«p.  472,  106  N.  Y.  Supp.  682. 

»  Estate  of  Scrimgeour,  80  App.  Div.  388,  80  N.  Y.  Supp.  636,  affirmed, 
175  N.  Y.  507,  67  N.  E.  1089;  Estate  of  Coogan,  27  Misc.  Rep.  563,  59 
N.  Y.  Supp.  111. 

10  Estate  of  Fulton,  30  Misc.  Rep.  70,  62  N.  Y.  Supp.  995. 


330  INHERITANCE  TAXATION. 

the  time  of  the  first  appraisement,  which  property  was 
brought  to  the  attention  of  the  appraiser  and  was  by 
him  held  not  subject  to  taxation.11  It  has  also  been 
held  that  a  surrogate  is  without  authority  to  open  a 
decree  assessing  a  tax,  for  errors  of  law  in  treating 
the  interest  of  the  decedent  in  firm  real  estate  as  per- 
sonalty, and  in  failing  to  make  a  deduction  for  mort- 
gages existing  upon  firm  personal  property.12  It  has 
been  decided,  too,  that  the  controller  cannot  procure 
a  new  appraisal  where  it  has  been  erroneously  decreed 
as  a  matter  of  law  that  a  bequest  to  the  executor  for 
his  services  to  the  testatrix  is  exempt  from  taxation.1* 

§  292.  Modification  of  Orders  or  Decrees. — If  prop- 
erty, through  collusion,  concealment,  or  inadvertence, 
has  escaped  assessment,  the  surrogate  court  is  not 
without  power  to  reach  it ;  and  if  facts  come  to  light 
after  the  tax  has  been  assessed,  showing  that  the  court 
has  exceeded  its  jurisdiction,  imposed  a  tax  on  a  suc- 
cession that  did  not  take  place,  or  has  otherwise  been 
led  into  error  calling  for  a  modification  of  its  orders 
or  decrees,  the  court  has  authority  to  grant  relief.14 
The  surrogate  is  clothed  with  authority  to  modify  his 
decree  erroneously  imposing  a  tax.15  He  may  modify 
his  order  holding  that  a  transfer  or  succession  oc- 
curred which  in  fact  did  not.16  He  may  modify  his  de- 
cree so  as  to  allow  an  exemption,17  or  to  deduct  a  debt 
of  the  estate  that  has  been  overlooked,18  or  deduct 

11  Estate  of  Crerar,  56  App.  DIY.  479,  67  N.  Y.  Supp.  795. 

12  Estate  of  Wallace,  28  Misc.  Rep.  603,  59  N.  Y.  Supp.  1084. 
is  Estate  of  Niven,  29  Misc.  Eep.  550,  61  N.  Y.  Supp.  956. 

i*  Morgan  v.  Cowie,  49  App.  Div.  612,  63  N.  Y.  Supp.  608;  Estate 
of  Scrimgeour,  176  N.  Y.  507,  67  N.  E.  1089. 

i*  Estate  of  Backhouse,  110  App.  Div.  737,  96  N.  Y.  Supp.  466, 
affirmed,  185  N.  Y.  544,  77  N.  E.  1181. 

i«  Estate  of  Warren,  62  Misc.  Rep.  444,  116  N.  Y.  Supp.  1034. 

i»  Estate  of  Daly,  34  Misc.  Rep.  148,  69  N.  Y.  Supp.  494. 

it  Estate  of  Campbell,  50  Misc.  Rep.  485,  100  N.  Y.  Supp.  637. 


VACATION  AND  MODIFICATION  OP  ORDERS  OR  DECREES.      331 

executors'  commissions  as  trustees,19  or  to  correct  an 
error  in  including  in  the  appraisement  property  er- 
roneously supposed  to  have  passed  to  a  son  of  the 
decedent.20 

§  293.  Correction  of  Valuation  of  Property.— The 
jurisdiction  of  a  surrogate  to  vacate  his  decree  fixing 
the  value  of  an  estate  has  been  touched  upon  in  a 
previous  section.21  The  law  contemplates  such  an 
estimate  of  the  value  of  the  property  and  of  such 
deductions  to  be  made  as  are  practicable  in  the  light 
of  the  information  obtainable,  and  an  appraisement 
should  not  ordinarily  be  disturbed  merely  because  it 
subsequently  proves  inaccurate.  Of  necessity,  it  must 
be  inaccurate  in  a  greater  or  less  degree.  Assets  may 
produce  more  or  less  than  the  sum  at  which  they  were 
appraised ;  and  the  deductions  allowed  may  vary  some- 
what from  what  should  have  been  permitted.  But  the 
estimate  which  is  fairly  and  honestly  made  must  fur- 
nish the  basis  for  the  imposition  of  the  tax;  "and  it 
has  been  held  that  the  surrogate  cannot  modify  his 
determination  because  he  had  not  estimated  the  value 
of  the  property  at  the  amount  it  ultimately  produces 
to  the  estate,  nor  because  he  has  not  estimated  the 
claims  against  the  estate  at  the  amount  which  it  is 
ultimately  discovered  they  will  reach,  nor  for  error 
in  treating  real  property  as  personalty,  nor  for  failure 
to  deduct  from  the  value  of  personal  estate  the  amount 
of  mortgages  thereon. ' ' 21* 

«  Estate  of  Silliman,  79  App.  Div.  98,  80  N.  Y.  Supp.  336,  affirmed, 
175  N.  Y.  513,  67  N.  E.  1090. 

20  Estate  of  Willet,  51  Misc.   Kep.  176,  100  N.  Y.  Supp.  850,  af- 
firmed, 119  App.  Div.  119,  104  N.  Y.  Supp.  1150. 

21  See  sec.  334,  ante. 

21*  Estate  of  Connelly,  38  Misc.  Eep.  466,  77  N.  Y.  Supp.  1032. 
Without  evidence  that  on  a  rehearing  a  greater  valuation  will  be 
shown,  the  state  will  not  be  granted  a  reheariag  to  review  an  ap- 
praisement alleged  to  be  too  low:  Estate  of  Johnson,  37  Misc.  Kep.  54.2, 
75  N.  Y.  Supp.  1046. 


332  INHERITANCE  TAXATION. 

In  accordance  with  this  doctrine,  it  has  been  decided 
that  a  surrogate  has  no  power  to  modify  his  determi- 
nation of  the  value  of  an  estate  in  order  to  allow  the 
executor  the  amount  of  a  judgment  subsequently 
recovered  against  the  estate  by  suit  after  his  rejec- 
tion of  the  claim,  and  another  claim  presented  against 
the  estate  after  the  appraisement,  and  also  certain 
expenses  of  administration.22  It  has  also  been  held 
that  a  reappraisement  will  not  be  ordered  merely  be- 
cause the  property,  after  the  order  fixing  the  tax,  sells 
at  public  auction  for  an  amount  exceeding  the  ap- 
praisement, no  fraud,  concealment,  or  mistake  being 
alleged ; 2S  and  that  where  property,  some  months 
after  the  appraisement,  sold  for  only  a  little  more 
than  half  of  the  amount  for  which  it  was  appraised, 
does  not  warrant  the  surrogate  in  modifying  his  decree 
by  reducing  the  valuation  to  the  sum  realized  on  the 
auction  sale.24  In  so  deciding  the  court  refers  to  the 
statement  of  Justice  Spring28  that  "if  facts  have 
arisen  since  the  imposition  and  payment  of  the  tax 
showing  it  was  improperly  assessed  or  excessive  in 
amount,  or  without  the  jurisdiction  of  the  court  to  tax, 
then  the  court  possesses  the  power  to  redress  the  wrong 
done ' ' ;  and  declares  26  that  if  this  statement  involves 
the  conclusion  that  the  power  of  the  surrogate  is  broad 

22  Estate  of  Connelly,  38  Misc.  Rep.  466,  77  N.  Y.  Supp.  1032. 

28  Estate  of  Bruce,  59  N.  Y.  Supp.  1083. 

24  Estate  of  Lowry,  89  App.  Div.  226,  85  N.  Y.  Supp.  924. 

26  This  statement  is  made  in  Morgan  v.  .Cowie,  49  App.  Div.  612, 
63  N.  Y.  Supp.  608. 

z«  Estate  of  Lowry,  89  App.  Div.  226,  85  N.  Y.  Supp.  924.  In  this 
case  it  was  sought  to  have  the  surrogate's  order  fixing  the  value  of 
the  estate  modified  because  a  sale  of  the  estate  a  few  months  later 
indicated  that  it  was  appraised  too  high.  The  court  said:  "The  val- 
uation now  alleged  to  have  been  erroneous  was  fixed  upon  all  the 
evidence  which  the  parties  chose  to  lay  before  the  court  at  the  time, 
and  so  far  as  appears  upon  all  the  evidence  which  then  existed.  A 
practice  which  would  permit  judgments  fixing  values  to  be  opened 
from  time  to  time  in  cases  where  a  subsequent  sale  of  the  appraised 
property  tended  to  show  that  the  figure  fixed  by  the  judgment  was 


VACATION  AND  MODIFICATION  OF  ORDERS  OR  DECREES.      333 

enough  to  permit  him  to  alter  his  valuation  upon  the 
reception  of  proof  as  to  subsequently  arising  facts 
indicating  that  it  was  too  high  or  too  low,  the  correct- 
ness of  the  proposition  is  doubtful. 

too  large  or  too  small,  would  lead  to  intolerable  uncertainty  and  con- 
fusion. In  the  administration  of  justice,  all  that  can  ordinarily  or 
reasonably  be  expected  or  demanded  by  litigants  in  the  determina- 
tion of  their  controversies  is  that  these  shall  be  correctly  decided 
upon  the  facts  relevant  to  the  issues  which  have  occurred  before 
the  trial  and  those  which  exist  at  the  time  when  the  trial  takes 
place.  They  cannot  be  insured  against  the  possibility  of  future  hap- 
penings which  may  indicate  that  the  decision  was  in  some  respects 
incorrect.  In  expressing  the  opinion,  however,  that  a  judgment  on 
an  issue  of  value  should  not  be  disturbed  by  the  court  which  ren- 
dered it  on  account  of  subsequently  arising  evidence  tending  to- 
show  that  the  valuation  adopted  was  erroneous,  it  was  not  necessary 
to  hold  that  there  can  be  no  case  in  which  a  court  might  modify 
its  decree  because  of  an  error  of  fact  arising  upon  the  trial  or  hear- 
ing. Such  power  would  probably  exist,  for  example,  where  the  prop- 
erty appraised,  which  all  parties  assumed  to  have  belonged  to  tho 
decedent,  really  included  a  lot  which  he  never  owned;  and  in  other 
cases  in  error  not  relating  to  any  issue  actually  litigated." 


334  INHERITANCE  TAXATION. 


CHAPTER  XX. 

APPEALS. 

i  300.    Persons  Entitled  to  Appeal. 

§  301.     Time  for  Appeal. 

§  302.     Notice  of  Appeal. 

§  303.     Bonds  or  Undertakings. 

§  304.     Other  Appellate  Proceedings. 

§  300.  Persons  Entitled  to  Appeal. — The  executor, 
as  such,  is  entitled  to  appeal  from  an  order  and  decree 
fixing  an  inheritance  tax;  he  is  made  liable  for  the 
tax,  and  is  a  party  aggrieved  within  the  meaning  of 
the  statute  relating  to  appeals.1  And  the  state,  as 
an  interested  party,  has  such  right  of  appeal.2  In 
New  York  the  state  controller  is  entitled  to  appeal 
from  the  order  of  a  surrogate  determining  that  part 
of  an  estate  is  not  subject  to  the  transfer  tax,3  or  re- 
versing an  order  assessing  a  transfer  tax.4  In  Ohio, 
where  the  probate  court  determines  the  liability  o£  a 
devise,  legacy  or  inheritance  for  the  tax,  an  appeal 
may  be  taken  by  either  party  to  the  controversy  from 

1  Estate  of  Cornell,  66  App.  Div.   162,  73  N.  Y.  Supp.   32,  order 
modified,  170  N.  Y.  423,  63  N.  E.  445.     According  to  Commonwealth 
v.  Coleman,  52  Pa.  468,  administrators  may    appeal  from  the   valua- 
tion on  the  personal  estate  but  have  nothing  to   do  with   the   real 
estate;   the  heirs  are  the  only  persons  who  have  a  right  to  appeal 
from  the  valuation  of  the  real  estate. 

2  Becker  v.  Nye,  8  Cal.  App.  129,  96  Pac.  333;   People  v.  Sholem, 
238  111.  203,  87  N.  E.  390;   Estate  of  Blackstone,  69  App.  Div.  127, 
74  N.  Y.  Supp.  508. 

The  voluntary  payment  of  the  tax  by  a  legatee,  in  compliance  with 
the  decree  of  the  orphans'  court  fixing  the  amount  thereof,  will  not 
bar  the  right  of  the  commonwealth  afterward  to  appeal  from  the 
decree  for  error  in  not  requiring  payment  of  the  six  per  cent  charge 
in  addition:  Appeal  of  Commonwealth,  128  Pa.  603,  18  Atl.  386. 

»  Estate  of  Dingman,  66  App.  Div.  228,  72  N.  Y.  Supp.  694. 

*  Estate  of  Hull,  109  App.  Div.  248,  95  N.  Y.  Supp.  819. 


APPEALS.  335 

the  judgment  of  the  probate  court  to  the  court  of 
common  pleas.' 

§  301.  Time  for  Appeal. — The  time  within  which 
an  appeal  may  be  taken  from  an  order  or  decree  in 
inheritance  tax  proceedings  varies  in  the  different 
states.-  In  Pennsylvania  an  appraisement  and  assess-. 
ment  becomes  final  and  conclusive  upon  all  parties  if 
not  appealed  from  within  thirty  days.8  In  New  York, 
where  the  state  controller  was  not  a  party  to  proceed- 
ings in  which  it  was  determined  that  part  of  the  estate 
was  not  subject  to  the  transfer  tax,  he  has  three  months 
in  which  to  appeal  from  the  surrogate's  order.7  Under 
the  New  York  statute  which  forbids  any  court  or  judge 
from  extending  the  time  fixed  by  law  within  which  an 
appeal  may  be  taken,  neither  the  appellate  division 
nor  the  surrogate's  court  can  extend  the  time  pre- 
scribed by  the  transfer  tax  statute  for  appealing  from 
an  assessment." 

§  302.  Notice  of  Appeal. — A  statute  which  gives  a 
right  of  appeal  in  inheritance  tax  proceedings  neces- 
sarily implies  notice.8  Under  the  New  York  statutes 
the  notice  must  state  the  grounds  upon  which  the  ap- 
peal is  taken,  and  no  questions,  other  than  those 
specified  in  the  notice,  can  be  considered  by  the  ap- 
pellate tribunal.10  This  rule,  however,  is  not  inflexible. 

•  Humphreys  v.  State,  70  Ohio  St.  67,  101  Am.  St.  Eep.  888,  1  Ann. 
Cas.  233,  65  L.  B.  A.  776,  70  N.  E.  957. 

•  Commonwealth  v.  Freedley,  21  Pa.  33. 

T  Estate  of  Dingman,  66  App.  Div.  228,  72  N.  Y.  Supp.  694. 

•  Estate  of  Seymour,  144  App.  Div.  151,  128  N.  Y.  Supp.  775. 

»  Estate  of  Beecher,  211  Pa.  615,  61  Atl.  252,  holding  that  the 
thirty  days'  limitation  of  the  right  of  appeal  begins  only  from  such 
notice. 

10  Estate  of  Davis,  149  N.  Y.  539,  44  N.  E.  185;  Estate  of  Man- 
ning, 169  N.  Y.  449,  62  N.  E.  565;  Miller  v.  Tracy,  93  App.  Div.  27, 
86  N.  Y.  Supp.  1024;  Eetate  of  Stone,  56  Misc.  Rep.  247,  107  N.  Y. 
Supp.  385.  The  propriety  of  the  appraiser's  action  in  deducting 
the  amount  of  a  claim  cannot  be  reviewed  by  the  surrogate  on  an 


336  INHERITANCE  TAXATION. 

On  an  appeal  to  a  surrogate  from  the  confirmation  of 
an  appraiser's  report  and  from  an  assessment  of  the 
tax  in  conformity  therewith,  the  appellants  should  be 
permitted  to  file  additional  allegations  that  since  the 
appraisal  litigation  has  been  commenced  to  determine 
who  are  the  heirs  and  next  of  kin  of  the  decedent,  thus 
creating  a  controversy  which  affects  the  title  of  the 
whole  estate,  although  the  sixty  days  allowed  for  an 
appeal  have  expired  and  the  grounds  specified  in  the 
notice  of  appeal  do  not  include  the  matter  of  these 
allegations,  it  appearing  that  the  litigation  was  not 
begun  until  the  expiration  of  the  time  limited  for  an 
appeal.  The  surrogate  should  either  postpone  the 
appraisement  until  the  litigation  is  determined,  or  at 
least  receive  and  consider  the  proofs  of  the  allega- 
tions.11 Where  the  state,  or  the  prosecuting  attorney 
in  its  behalf,  takes  the  appeal,  it  may  be  done  with- 
out filing  the  written  notice  of  an  intention  to  appeal 
provided  by  the  Ohio  statute.12 

§  303.  Bonds  or  Undertaking. — When  an  appeal  is 
taken  by  the  state,  or  by  an  officer  in  its  behalf,  it  is  not 
required  to  give  a  bond  or  an  undertaking.  This  has 
been  decided  in  Illinois  and  Ohio.18 

§  304.  Other  Appellate  Proceedings. — It  has  been 
said  that  inheritance  tax  proceedings,  while  special, 
are  at  law,  and  are  not  equitable  in  character;  and 
that  the  rules  applicable  to  appeals  in  law  cases  must 

appeal  from  the  appraiser's  determination,  where  the  item  is  not 
specified  in  the  notice  of  appeal:  Estate  of  Wormser,  51  App.  Div. 
441,  64  N.  Y.  Supp.  897. 

11  Estate  of  Westurn,  152  N.  Y.  93,  46  N.  E.  315. 

12  Humphreys  v.  State,  70  Ohio   St.  67,  101  Am.  St.  Eep.   888,  1 
Ann.  Cas.  233,  65  L.  E.  A.  776,  70  N.  E.  957. 

is  People  v.  Sholem,  238  111.  203,  87  N.  E.  390;  Humphreys  v. 
State,  70  Ohio  6t.  67,  101  Am.  St.  Eep.  888,  1  Ann.  Cas.  233,  65  L. 
E.  A.  776,  70  N.  E.  957. 


APPEALS.  337 

govern.14  Questions  not  raised  below  will  ordinarily 
riot  be  considered  in  the  appellate  tribunal.15  A  find- 
ing that  an  amount  deducted  for  the  erection  of  a 
tomb  was  reasonable  will  not  be  reviewed,  if  the  record 
does  not  show  how  much  was  reserved  for  that  pur- 
pose.18 But  in  any  case  where  the  court  can  see  that 
a  ruling  in  rejecting  evidence  may  have  been  preju- 
dicial to  the  appellant,  it  should  not  insist  that  an  ex- 
ception is  indispensable  to  a  review  of  the  errors  com- 
mitted in  its  rejection.17 

On  the  decision  of  the  surrogate  acting  as  an  asses- 
sor, an  appeal  does  not  lie  in  New  York.  The  proper 
practice  is  to  apply  to  the  surrogate  to  review  his 
decision,  and  appeal  from  the  determination  thereof.18 

A  surrogate  has  authority,  upon  an  appeal  to  him 
from  an  order  confirming  the  report  of  the  appraiser, 
to  receive  proof  that  a  transfer  of  property  by  the 
decedent  in  his  lifetime  was  made  in  contemplation 
of  death  and  therefore  is  taxable.19 

If  the  supreme  court  assumes  jurisdiction,  on  an 
appeal  from  an  order  appointing  an  appraiser,  to  ascer- 
tain the  amount  of  the  inheritance  tax  alleged  by  the 
authorities  to  be  due,  it  will  go  no  further  than  to 
ascertain  whether  there  was  any  property  subject  to 
the  appraisement.20 

In  Illinois,  inheritance  tax  cases  are  appealed  di- 
rectly to  the  supreme  court  from  the  county  court,  re- 
gardless of  whether  revenue  is  directly  involved.21 

«  Estate  of  Culver  (Iowa),  133  N.  W.  722. 
«  People  v.  Sholem,  238  111.  203,  87  N.  E.  390. 

i«  Morrow  v.  Durant,  140  Iowa,  437,  17  Ann.  Gas.  850,  23  L.  B. 
A.,  N.  S.,  474,  118  N.  W.  781. 

"  Estate  of  Brundage,  31  App.  Div.  348,  52  N.  Y.  Supp.  362. 
"  Estate  of  Costello,  189  N.  Y.  288,  82  N.  E.  139. 
i»  Estate  of  Thompson,  57  App.  Div.  317,  68  N.  Y.  Supp.  18. 
20  Douglas  County  v.  Kountze,  84  Neb.  506,  121  N.  W.  593. 
si  People  v.  Sholem,  238  111.  203,  87  N.  E.  390. 
22 


338  INHERITANCE  TAXATION. 

The  order  of  a  surrogate  "fixing  the  transfer  tax 
upon  an  estate  is  an  entirety,  and  a  party  claiming 
to  be  aggrieved  thereby  and  taking  an  appeal  should 
present  upon  that  appeal  every  objection  which  he 
has  to  the  order.  It  would  lead  to  endless  delay  and 
confusion  if  he  was  permitted  to  take  a  separate  ap- 
peal for  each  objection  he  had  to  the  order  of  the 
surrogate.  The  practice  in  this  class  of  cases  has 
always  been  to  consider  only  such  objections  as  the 
appellant  specifies,  and  to  affirm  the  order  as  a  matter 
of  course  in  all  other  respects.  The  specification  of 
one  or  more  objections  is  deemed  equivalent  to  a  con- 
cession that  the  appellant  regards  the  decree  in  all 
other  respects  correct.  It  is,  in  substance,  an  appeal 
only  from  those  parts  to  which  objection  is  made,  and 
after  an  appeal  from  one  part  of  a  decree,  a  defeated 
appellant  has  never  been  permitted  to  appeal  from 
other  parts,  and  so  on  piecemeal,  until  he  has  obtained 
a  review  of  the  whole  by  successive  appeals."  82 

22  Estate  of  Cook,  194  N.  Y.  400,  87  N.  E.  786. 


PAYMENT  AND  ENFORCEMENT  OP  TAX.  339 


CHAPTER  XXL 
PAYMENT  AND  ENFORCEMENT  OF  TAX. 

§  308.  Method  of  Enforcement,  in  General. 

§  309.  Failure  of  Statute  to  Prescribe  Procedure. 

§  310.  Law  Governing  Procedure. 

§  311.  Accrual  of  Tax  and  Time  for  Payment. 

§  312.  Limitation  of  Actions. 

§  313.  Costs,  Fees  and  Commissions. 

§  314.  Adjudication  in  Another  State — Full  Faith  and  Credit. 

§  315.  Payment  in  Another  State. 

§  316.  Payment  to  State  or  County  Treasurer. 

§  317.  Receipts  for  Payment. 

§  318.  Refund  to  Taxpayer. 

§  319.  Recovering  Back  Tax. 

S  320.  Interest  and  Penalties. 

§  308.  Method  of  Enforcement,  in  General. — The 
manner  of  enforcing  inheritance  taxes  has,  to  some 
extent,  already  been  considered  in  the  chapters  on 
"Persons  or  Fund  Liable  for  the  Tax  and  Lien  of 
the  Tax. ' ' J  Since  an  inheritance  tax  is  on  the  suc- 
cession rather  than  on  the  property,  proceedings  to 
enforce  it  are  not  in  rem.2  The  proper  mode  of  suing 
for  a  collateral  tax  in  case  of  a  legacy  in  remainder 
has  been  said  to  be  by  a  bill  in  equity,  in  the  nature 
of  an  information,  in  the  name  of  the  attorney  gen- 
eral.3 Suit  to  recover  a  tax  should  be  brought  di- 
rectly against  the  heirs  liable  therefor,  rather  than 
against  the  succession,  for  the  tax  is  their  debt,  not 
that  of  the  succession.4  A  surrogate  may  enforce 
his  order  for  the  payment  of  a  tax  by  proceedings 
for  contempt,  other  than  against  executors,  adminis- 

1  See  sees.   260-273,  ante.     As  to  the  power  of  a  revenue  agent  in 
Kentucky  to  prosecute  proceedings  to  collect  a  tax,  see  Commonwealth 
v.  Gaulbert,  134  Ky.  157,  119  S.  W.  779. 

2  Estate  of  Wolfe,  2  Con.  600,  15  N.  Y.  Supp.  539. 
»  Attorney  General  v.  Pierce,  59  N.  C.  240. 

*  Succession  of  Pargoud,  13  La.  Ann.  367. 


340  INHERITANCE  TAXATION. 

trators  and  trustees,  but  not  before  the  issuance  and 
return  of  execution.' 

The  discretionary  power  of  a  surrogate  to  appoint 
a  special  guardian  for  a  minor  interested  in  an  estate 
can  be  exercised  only  when  some  reason  exists  there- 
for. Hence  in  proceedings  to  assess  an  inheritance 
tax,  it  is  improper  to  make  an  allowance  to  a  special 
guardian  appointed  for  an  infant  party  interested  in 
remainder  whose  interest  cannot  be  determined  or 
taxed  in  that  proceeding,  wherein  the  only  question 
presented  is  one  between  the  state,  the  executor,  and 
an  adult  life  tenant.9 

The  state  has  the  burden  of  proving  the  facts  under 
which  an  inheritance  tax  may  be  imposed.7 

§  309.    Failure  of  Statute  to  Prescribe  Procedure. — 

An  inheritance  tax  statute  is  not  defective  in  failing 
to  provide  a  method  for  its  enforcement  if  it  ex- 
pressly creates  a  liability  on  the  part  of  the  recipients 
of  inherited  estates  to  pay  the  amount  of  the  tax  to 
the  county  treasurer  for  the  use  of  the  state.  He  can 
maintain  an  ordinary  action,  based  on  such  liability, 
against  them  whenever  there  is  a  refusal  to  make 
payment.8  In  case  the  statute  clearly  prescribes  the 
method  of  enforcing  collection  of  the  tax,  its  validity 
is  not  affected  by  the  fact  that  there  is  no  established 
practice  of  the  probate  court  in  like  cases  for  the 
service  of  citations  out  of  that  court,  the  hearing 
thereon,  and  the  enforcement  of  the  court's  order.9 
It  is  not  enough,  however,  for  the  legislature  merely 
to  declare  certain  transfers  taxable;  if  no  mode  is 
provided  for  assessing  and  collecting  the  tax,  the  law 

•  Estate  of  Prout,  3  N.  Y.  Supp.  831. 

•  Estate  of  Post,  5  App.  Div.  113,  38  N.  Y.  Supp.  977. 

»  Estate  of  Miller,  77  App.  Div.  473,  78  N.  Y.  Supp.  930. 
8  Estate  of  McKennan    (S.  D.),-  130  N.  W.   33. 

•  Union  Trust  Co.  v.  Probate  Court,  125  Mieh.  487,  84  N.  W.  110.1. 


PAYMENT  AND  ENFORCEMENT  OP  TAX.  341 

is  imperfect,   and  cannot,   as  to   such  transfers,   be 
executed.10 

§  310.  Law  Governing  Procedure. — The  rights 
and  liabilities  of  the  parties  in  the  matter  of  an  in- 
heritance tax  are,  in  case  of  a  change  in  the  statutes, 
governed  by  the  law  in  force  at  the  time  of  the  de- 
cedent's death,  but  the  procedure  for  the  ascertain- 
ment and  enforcement  of  the  tax  is  controlled  by  the 
statute  in  force  at  the  time  of  the  institution  of  the 
proceeding.  This  is  in  accordance  with  the  general 
rule  that,  in  the  absence  of  words  of  exclusion,  a  stat- 
ute which  relates  to  the  form  of  procedure  or  the 
mode  of  defending  or  attaining  rights,  is  applicable 
to  proceedings  pending  or  subsequently  commenced.11 

§  311.  Accrual  of  Tax  and  Time  for  Payment. — 
The  accrual  of  inheritance  taxes,  together  with  the 
time  for  their  payment,  in  the  case  of  powers  of  ap- 
pointment and  estates  in  remainder  or  upon  con- 
tingency, has  been  considered  in  preceding  chapters 
dealing  with  those  subjects.12  The  general  rule  is, 
that  the  inheritance  tax  accrues  on  the  death  of  the 
decedent,  for  the  tax  is  on  the  succession,  and  it  is  at 
that  time  that  the  succession  takes  place.13  The  tax 

10  Estate  of  Embury,  19  App.  Div.  214,  45  N.  Y.  Supp.  881,  af- 
firmed, 154  N.  Y.  746,  49  N.  E.  1096. 

"  Estate  of  Davis,  149  N.  Y.  539,  44  N.  E.  185;  Matter  of  Sloane, 
154  N.  Y.  109,  47  N.  E.  978;  Estate  of  Sterling,  9  Misc.  Rep.  224, 
30  N.  Y.  Supp.  385. 

12  See  sees.  78-103,  ante. 

is  Estate  of  Seaman,  147  N.  Y.  69,  41  N.  E.  401;  Estate  of  Davis, 
149  N.  Y.  539  44  N.  E.  185;  Appeal  of  Mellow,  114  Pa.  564,  8  Atl. 
183;  Prevost  v.  Greneaux,  60  U.  S.  (19  How.)  1,  15  L.  Ed.  572.  For 
this  rule  applied  to  cases  under  the  former  United  States  revenue  acts, 
see  May  v.  Slack,  Fed.  Cas.  No.  9336;  Hellman  v.  United  States,  15 
Blatchf .  13,  Fed.  Gas.  No.  6341 ;  United  States  v.'  New  York  L.  I.  &  T. 
Co.,  9  Ben.  413,  Fed.  Gas.  No.  15,873;  United  States  v.  Townsend,  8 
Fed.  306;  Sturges  v.  United  States,  117  U.  S.  363,  29  L.  Ed.  920,  6 
Sup.  Ct.  Rep.  767. 


342  INHERITANCE  TAXATION. 

accrues  when  the  estate  vests  on  the  death  of  the 
owner,  and  is  not  affected  by  transfers  or  agreements 
of  the  persons  succeeding  to  the  property.14  The 
right  of  the  state  to  the  tax  vests,  in  point  of  time, 
at  the  time  the  estate  vests,  that  is,  upon  the  death 
of  the  owner ; "  and  whether  the  succession  is  liable 
to  be  taxed  is  to  be  determined  upon  the  conditions 
then  existing.1* 

The  time  when  the  tax  becomes  due  and  payable 
varies  more  or  less  with  the  different  statutes.  In 
case  payment  is  made  within  a  specified  time,  the  law 
usually  allows  a  discount ;  in  case  payment  is  deferred 
beyond  a  time  specified,  interest  is  charged,17  of  which 
more  will  be  said  in  the  concluding  sections  of  this 
chapter. 

§  312.  Limitation  of  Actions. — The  generality  of 
the  statutes  are  not  clear  as  to  the  time  limited  for 
the  commencement  of  actions  to  enforce  inheritance 
taxes.  Provisions  in  the  Massachusetts  inheritance 
tax  statute  that  all  taxes  shall  be  due  and  payable  at 
the  expiration  of  two  years  from  the  qualification 
of  the  executor,  and  that  the  treasurer  shall  bring 
suit  within  six  months  after  the  taxes  are  due  and 
payable,  do  not  prevent  the  maintenance  of  a  suit 
after  the  expiration  of  two'  years  and  six  months  from 
such  qualification,  where  the  executor  is  made  liable 
for  the  taxes  until  paid,  during  which  time  they  are 
a  lien  on  the  property.18  And  in  that  state  a  petition 
by  the  treasurer  and  receiver  general  of  the  common- 
wealth, praying  the  probate  court  to  determine 

i*  Estate  of  Graves,  242  111.  212,  89  N.  E.  978;  Estate  of  Cum- 
mings,  63  Misc.  Hep.  621,  118  N.  Y.  Supp.  684. 

is  National  Safe  Deposit  Co.  v.  Stead,  250  HI.  584,  Ann.  Cas.  1912B, 
430,  95  N.  E.  973.  * 

i«  Pierce  v.  Stevens,  205  Mass.  219,  91  N.  E.  319. 

IT  Commonwealth  v.  Gaulbert,  134  Ky.  157,  119  S.  W.  779. 

"  Howe  v.  Howe,  179  Mass.  546;  55  L.  E.  A.  626,  61  N.  E.  225. 


PAYMENT  AND  ENFORCEMENT  OP  TAX.  343 

•whether  an  estate  is  subject  to  an  inheritance  tax  and 
to  fix  its  amount,  is  not  barred  either  by  the  general 
or .  the  special  statute  of  limitations,  although  filed 
more  than  six  years  after  the  tax  became  payable.19 

In  California,  according  to  a  nisi  prius  decision,  the 
defense  of  the  statute  of  limitations  is  applicable  to  a 
proceeding  against  executors  for  the  collection  of  the 
inheritance  tax.  Such  a  proceeding  is  barred,  under 
the  provisions  of  section  338  of  the  Code  of  Civil  Pro- 
cedure, by  the  lapse  of  three  years  after  the  accrual  of 
the  liability ;  and  the  liability  is  complete  at  or  before 
the  close  of  the  administration.  If  the  executor  is  re- 
garded as  occupying  the  position  of  a  trustee  for  the 
state,  this  relation  does  not  continue  so  as  to  prevent 
the  running  of  the  statute  after  proceedings  have  been 
had  to  fix  the  tax,  and  the  amount  thereof  has  been 
fixed  and  ordered  paid,  and  the  residue  of  the  estate 
distributed  and  the  administration  closed.20 

By  statute  enacted  in  1899,  the  New  York  legislature 
declared  that  the  statute  of  limitations  should  no 
longer  be  a  defense  to  proceedings  to  collect  the  inher- 
itance tax,  except  that  as  to  real  estate  in  the  hands  of 
bona  fide  purchasers  the  tax  should  be  presumed  to  be 
paid  and  cease  to  be  a  lien  after  six  years  from  the  date 
of  its  accrual.  This  statute  was  made  retrospective.21 

The  provision  of  the  Pennsylvania  statute  that  ' '  the 
lien  of  the  collateral  inheritance  tax  shall  continue  until 
the  said  tax  is  settled  and  satisfied ;  provided,  that  the 
said  lien  shall  be  limited  to  the  property  chargeable 

i»  Bradford  v.  Storey,  189  Mass.  104,  75  N.  E.  256.  In  this  case 
it  is  said  that  a  tax  is  not  a  debt  in  the  ordinary  sense  of  the  word, 
and  is  not  founded  upon  a  contract,  express  or  implied. 

20  Estate  of  Gordon,  2  Cof.  Pro.  138. 

21  Estate  of  Moench,  39  Misc.  Rep.  480,  80  N.  Y.  Supp.  222;  Estate 
of  Strang,  117  App.  Div.  796,  102  N.  Y.  Supp.  1062. 

It  has  been  held  that  a  proceeding  in  New  York  to  enforce  the 
tax  cannot  be  initiated  until  the  expiration  of  eighteen  months  after 
the  death  of  the  decedent:  Frazer  v.  People,  6  Dem.  Sur.  174;  Estate  of 
Moench,  39  Misc.  Eep.  480,  88  N.  Y.  Supp.  222. 


344  INHERITANCE  TAXATION. 

therewith :  and  provided,  further,  that  all  collateral  in- 
heritance taxes  shall  be  sued  for  within  five  years  after 
they  are  due  and  legally  demandable,  otherwise  they 
shall  be  presumed  to  have  been  paid,  and  cease  to  be  a 
lien  as  against  any  purchasers  of  real  estate" — does 
not  extinguish  the  personal  liability  of  heirs,  devisees 
and  legatees  at  the  end  of  five  years.  The  proviso  is 
intended  simply  to  quiet  the  title  of  purchasers  of  real 
estate.  When  there  is  no  purchaser  to  protect,  the  lien 
of  taxes  due  upon  real  estate,  as  well  as  the  debt  itself, 
will  continue  after  five  years.22 

But  a  statute  of  Tennessee,  identical  with  the  Penn- 
sylvania statute,  has  been  given  a  broader  construction 
and  been  held  not  merely  applicable  to  purchasers  of 
realty,  but  to  establish  a  general  limitation  of  five 
years  in  this  class  of  cases.23 

After  forty-two  years,  an  inheritance  tax  will  be 
presumed  to  have  been  paid,  not  only  on  the  ground  of 
lapse  of  time,  but  from  the  presumption  that  the  ex- 
ecutor or  administrator  did  his  duty  under  his  oath  of 
office.24 

§  313.  Costs,  Fees,  and  Commissions. — Where  a  re- 
quest to  the  state  authorities  is  made  to  the  probate 
court  to  make  an  order  for  the  payment  of  an  inherit- 
ance tax  in  excess  of  the  amount  chargeable  under  the 
law,  or  an  appeal  is  taken  by  the  attorney  general  from 
an  order  of  the  probate  court  fixing  the  tax,  a  "  civil 
proceeding"  is  instituted  by  an  officer  of  the  state 
wherein  the  people  are,  under  the  Michigan  statute, 
liable  for  costs  to  the  same  extent  as  though  the  pro- 
ceeding were  instituted  by  an  individual.28 

Under  the  New  York  transfer  tax  act  of  1892,  the 
costs  and  disbursements  to  which  the  district  attorney 

22  Estate  of  Cullen,  143  Pa.  18,  21  Atl.  781. 

23  Miller  v.  Wolfe,  115  Term.  234,  89  S.  W.  398. 

24  Estate  of  Stewart,  147  Pa.  383,  23  Atl.  599. 

25  Estate  of  Fox,  162  Mich.  531,  127  N.  W.  668. 


PAYMENT  AND  ENFORCEMENT  OF  TAX.  345 

may  deem  himself  entitled  in  case  of  success  must  be 
taxed  in  the  same  manner  as  costs  in  other  proceedings 
in  the  surrogate's  court.  In  order  to  entitle  himself 
to  a  certificate  that  there  was  probable  cause  for  issu- 
ing a  citation  to  enforce  the  tax,  so  that  the  treasurer 
shall  pay  the  expenses  incurred  in  case  the  proceediDg 
is  unsuccessful,  he  must  furnish  satisfactory  evidence 
to  the  surrogate  that  there  was  probable  cause.  An 
affidavit  that  simply  states  that  he  commenced  the  pro- 
ceeding in  good  faith  is  not  enough.28 

Under  the  Pennsylvania  statute  of  1887,  the  reg- 
ister of  wills  of  Allegheny  county  is  entitled  to  com- 
missions on  the  collateral  inheritance  tax  collected  by 
him  and  paid  in  to  the  state  treasury.27 

In  Maryland  a  register  of  wills  is  not  entitled  to  re- 
tain, as  extra  compensation,  over  and  above  the  salary 
and  expenses  of  his  office  allowed  by  the  constitution, 
the  five  per  cent  commission  allowed  by  law  on  the 
amount  of  taxes  on  collateral  inheritances.28 

In  Tennessee,  where  the  attorney  of  the  county  court 
clerk  successfully  prosecutes  an  action  to  recover  an 
inheritance  tax,  he  is  entitled  to  a  fee  for  his  services, 
to  be  paid  by  the  delinquent.29  Where  the  clerk  em- 
ploys the  state  revenue  agent  to  sue  for  a  tax,  and  the 
suit  is  brought  and  tried  in  the  chancery  court  without 
objection,  the  agent  is  entitled,  in  addition  to  his  salary, 
to  a  fee,  in  his  capacity  as  attorney,  of  five  per  cent  of 
the  tax.30  The  provisions  of  the  act  of  1897  to  the  effect 
that  the  fees  provided  by  law  shall  be  taxed  against  the 
losing  party  and  turned  over  to  the  state,  require  that 
costs  allowed  a  district  attorney  general  in  an  inherit- 
ance tax  case  shall  be  so  turned  over.*1 

26  Estate  of  McCarthy,  5  Misc.  Rep.  276,  25  N.  Y.  Supp.  987. 

2T  Allegheny  County  v.  Stengel,  213  Pa.  493,  63  Atl.  58. 

28  Banks  v.  State,  60  Md.  305. 

2»  Knox  v.  Emerson,  123  Tenn.  409,  131  S.  W.  972. 

so  Shelton  v.  Campbell,  109  Tenn.  690,  72  8.  W.  lia. 

si  Harrison  v.  Johnston,  109  Tenn.  245,  70  S.  W.  414. 


346  INHERITANCE  TAXATION". 

The  Louisiana  statute  does  not  provide  for  the  pay- 
ment of  fees  of  an  attorney  employed  by  the  tax  col- 
lector to  prosecute  an  action  to  recover  a  succession 
tax." 

§  314.  Adjudication  in  Another  State — Full  Faith 
and  Credit. — The  conclusiveness  attending,  under  the 
New  Jersey  practice,  the  probate  of  a  will,  the  settle- 
ment of  the  executor's  account,  and  the  final  distribu- 
tion of  the  estate  pursuant  to  orders  which  the  court 
made,  after  having  decreed  that  all  those  who  had 
neglected  to  bring  in  their  claims  were  forever  barred 
from  their  action  therefor  against  the  executor,  renders 
repugnant  to  the  full  faith  and  credit  clause  of  the 
United  States  constitution  a  subsequent  assessment, 
under  the  New  York  laws,  upon  the  personal  estate  of 
the  decedent  as  a  resident  of  that  state,  of  a  succession 
tax,  which,  under  such  laws,  is  made  a  lien  on  the 
property  and  a  personal  obligation  of  the  transferees 
and  executors.33 

This  adjudication  by  the  supreme  court  of  the  United 
States  has  been  distinguished  in  a  New  York  case 
where  Judge  Miller  says  that  as  he  reads  the  opinion 
of  the  United  States  court  it  decided:  (1)  That  the  ad- 
judication respecting  domicile  was  not  binding  upon 
anybody  not  a  party  to  the  proceeding.  (2)  That  pro- 
ceedings for  the  probate  of  wills  and  for  the  adminis- 
tration and  distribution  of  the  estates  of  decedents  are 
proceedings  in  rem.  (3)  That  such  proceedings  in 
their  effect  upon  the  res  before  the  court  are  binding 
on  all  the  world  to  the  extent  that  they  are  conclusive 
within  the  jurisdiction  where  held.  (4)  That  upon  the 
proof  of  the  New  Jersey  law,  meager  and  unsatis- 

82  Succession  of  Kohn,  115  La,  71,  38  South.  898;  Succession  of 
Levy,  115  La.  377,  5  Ann.  Cas.  871,  8  L.  B.  A.,  N.  S.,  1180,  39  South. 
37,  affirmed,  Cahen  v.  Brewster,  203  U.  S.  543,  8  Ann.  Cas.  215,  51  L. 
Ed.  310,  27  Sup.  Ct.  Eep.  174. 

«s  Tilt  v.  Kelsey,  207  U.  S.  43,  52  L.  Ed.  95,  28  Sup.  Ct.  Eep.  1. 


PAYMENT  AND  ENFORCEMENT  OP  TAX.  347 

factory  though  it  was,  the  decree  in  that  state  barring 
all  claims  not  presented,  followed  by  a  decree  directing 
final  distribution  of  the  entire  estate,  involved  a  dis- 
tribution of  the  estate  freed  from  all  demands,  includ- 
ing that  of  New  York  state  for  taxes,  and  the  exonera- 
tion of  the  executor  therefor;  that  these  decrees  were 
conclusive  in  New  Jersey  upon  all  the  world ;  and  that 
therefore  the  assessment  of  a  tax  by  New  York  state 
denied  them  full  faith  and  credit.  (5)  That  it  was  as- 
sumed below  that  the  proceedings  in  New  Jersey  were 
duly  had,  and  that  the  taxes  as  assessed  were  based  on 
the  provisions  of  the  will,  which  derived  its  authenticity 
and  its  capacity  to  transmit  property  from  the  judicial 
proceedings  in  New  Jersey;  wherefore  the  jurisdiction 
of  the  New  Jersey  courts  could  not  for  the  first  time 
be  attacked  on  appeal,  although  the  fact  of  residence 
was  relevant  to  that  question — indeed,  it  was  stated 
earlier  in  the  opinion  that  an  adjudication  of  residence 
was  essential  to  the  assumption  of  jurisdiction.34 

In  Washington,  it  has  been  decided  in  inheritance 
tax  opinions  where  the  decedent  was  a  resident  of 
Maine  and  left  property  in  both  states,  and  his  will  was 
probated  in  Maine,  that  the  judgment  of  the  probate 
court  of  the  latter  state  is  in  Washington  entitled  to 
full  faith  and  credit  and  conclusive  as  to  the  method 
of  distribution.35 

§  315.  Payment  in  Another  State. — The  payment 
of  an  inheritance  tax  to  one  state  is  not  a  defense  to 
proceedings  in  another  state  to  enforce  a  similar  tax 
imposed  by  its  laws  in  respect  to  the  same  property,*8 
unless,  as  is  now  the  case  in  some  jurisdictions,  the 

34  Estate  of  Cummings,  142  App.  Div.  377,  127  N.  Y.  Supp.  109. 

as  Estate  of  Clark,  37  Wash.  671,  80  Pac.  267. 

86  Appeal  of  Hopkins,  77  Conn.  644,  60  Atl.  657;  Estate  of  Stanton, 
142  Mich.  491,  105  N.  W.  1122;  Douglas  County  v.  Kountze,  84  Neb. 
506,  121  N.  W.  593;  Blackstone  v.  Miller,  188  U.  S.  189,  47  L.  Ed.  439, 
23  Sup.  Ct.  Rep.  277. 


343  INHERITANCE  TAXATION. 

statutes  expressly  allow  a  rebate  for  payments  made 
to  other  states  or  countries.  Vermont  is  one  of  the 
commonwealths  that  makes  such  rebates,  but  it  has 
been  decided  there  that  only  so  much  in  rebate  can 
be  allowed  as  has  actually  been  paid  elsewhere. 
Hence,  if  a  discount  was  allowed  in  the  foreign  juris- 
diction for  prompt  payment,  the  measure  of  the  re- 
bate is  not  the  full  amount  of  the  tax,  but  the  full 
amount  less  the  discount.37 

The  payment  of  an  inheritance  tax  by  the  executors 
to  a  foreign  state  in  order  to  obtain  property  there 
situated  should,  in  the  absence  of  a  contrary  intention 
expressed  in  the  will,  be  regarded  as  an  expense  of 
administration,  to  be  paid  from  the  general  property 
of  the  estate,  and  not  as  a  charge  pro  rata  upon  spe- 
cific legacies.38 

§  316.    Payment  to  State  or  County  Treasurer. — A 

county  treasurer  has  no  interest  in  money  collected 
under  the  inheritance  tax  law,  except  for  commissions, 
and  is  not  entitled  to  retain  such  money  a  longer 
period  than  is  reasonably  required  for  its  transmission 
to  the  state  treasurer.  If  he  fails  to  make  payment 
to  the  state  treasurer  within  a  reasonable  time,  he 
may  be  coerced  by  mandamus.38 

The  sureties  on  a  bond  given  by  a  register  in  Penn- 
sylvania, under  the  act  of  March  15,  1832,  for  the 
faithful  execution  of  his  duties  and  the  payment  of 
all  moneys  received  for  the  use  of  the  commonwealth, 
are  not  responsible  for  collateral  inheritance  taxes 
collected  but  not  paid  over  by  him.40 

In  New  Jersey,  where  an  executor  has  paid  the  tax 
on  legacies,  although  it  is  his  duty  to  deduct  such 

87  Estate  of  Meadon,  81  Vt.  490,  70  Atl.  1064. 

»8  Kingsbury  v.  Bazeley,  75  N.  H.  13,  139  Am.  St.  Rep.  664,  20 
Ann.  Gas.  1355,  70  Atl.  916. 

89'  People  v.  Raymond,  188  111.  454,  59  N.  E.  7. 
*o  Commonwealth  v.  Toms,  45  Pa.  408. 


PAYMENT  AND  ENFORCEMENT  OF  TAX.  349 

tax  at  settlement  with  his  legatee,  he  may  properly 
make  the  payments  and  have  allowance  for  them  in 
his  final  account.  He  is  not  ordinarily  compelled  to 
pay  such  tax  until  the  expiration  of  the  year  allowed 
him  by  law  for  the  settlement  of  the  estate,  and  he 
should  not  be  refused  allowance  for  such  interest  as 
he  would  be  required  to  pay  if  the  tax  were  paid 
within  the  year.41 

Section  8  of  the  Revised  Code  of  North  Carolina 
*vhich  directs  the  tax  on  legacies  to  strangers  in  blood, 
imposed  by  the  preceding  section,  to  be  retained  by 
the  executor  or  administrator  "upon  his  settlement 
of  the  estate,"  and  directs  the  tax  to  be  paid  into 
the  clerk's  office,  has  reference  to  his  settlement  with 
the  individual  to  whom  the  legacy  is  bequeathed,  and 
not  to  the  final  settlement  of  the  estate,  and  the  tax 
must  be  paid  into  the  office  on  the  settlement  with 
the  legatee.42 

§  317.  Receipts  for  Payment. — The  statutes  usu- 
ally provide  in  detail  for  the  issuance  of  receipts  for 
the  payment  of  inheritance  taxes.  In  California, 
when  the  superior  court  has  fixed  the  tax,  the  con- 
troller has  no  revisory  power  over  its  action,  and 
cannot  assail  it  collaterally;  and  if  he  declines  to 
give  any  receipt  for  the  amount  of  the  tax  as  fixed  by 
the  court,  he  may  be  compelled  by  mandamus  to  re- 
ceipt for  so  much  money  on  account  of  the  tax  in  the 
matter  of  the  estate,  so  as  not  to  prejudice  the  right 
of  the  state  to  appeal  from  the  order  fixing  it,  for 
the  determination  of  all  questions  arising  upon  the 
record  of  the  estate  in  relation  thereto.43 

§  318.  Refund  to  Taxpayer. — Various  provisions 
are  made  by  the  different  statutes  for  refunding  to  tax- 

41  Wyckotf  v.  O'Neil,  72  N.  J.  Eq.  880,  67  Atl.  32. 

42  Attorney  General  v.  Allen,  59  N.  C.  144. 

43  Becker  v.  Nye,  8  Cal.  App.  129,  96  Pac.  333. 


350  INHERITANCE  TAXATION. 

payers  excessive  or  erroneous  payments.  Section  10 
of  the  Illinois  statute  authorizes  the  state  treasurer  to 
refund  the  amount  of  taxes  erroneously  paid,  but  it 
does  not  authorize  the  county  treasurer  to  do  so.44 

When  a  tax  has  been  erroneously  or  unlawfully  ex- 
acted, it  is  immaterial,  so  far  as  the  right  to  a  refund 
is  concerned,  whether  the  tax  was  paid  voluntarily  or 
under  duress;  and  if  the  statute  provides  that  the 
11  state  controller  shall  by  order  direct  and  allow  the 
treasurer  of  the  county  to  refund"  the  tax,  he  may  be 
compelled  by  mandamus  to  discharge  this  duty.45 

The  surrogate  may  properly  decline  to  insert,  in  the 
order  vacating  a  tax  upon  an  estate,  a  direction  to  the 
state  controller  to  refund  the  amount  of  the  tax,  since 
the  statute  itself  directs  the  refund  to  be  made  in  such 
a  case.48 

If  the  decree  fixing  a  tax  is  reversed  on  appeal  while 
the  tax  remains  in  the  hands  of  the  county  treasurer, 
the  surrogate  has  power  to  direct  him  to  refund  it.  It 
is  only  when  the  tax  has  been  paid  into  the  state  treas- 
ury that  the  state  controller  has  authority  to  order  a 
refund.47  Where,  after  payment  of  a  tax  under  an 
order  of  the  surrogate  holding  an  estate  subject  to 
taxation,  an  appeal  is  taken  and  the  order  reversed, 
but  in  the  meantime  the  tax  has  been  paid  by  the  con- 
troller of  the  city  of  New  York  to  the  state  controller, 
restitution  of  the  money  thus  paid  will  not  be  ordered 
to  be  made  by  the  controller  of  the  city  of  New  York ; 
the  remedy,  in  such  a  case,  is  to  obtain  a  refund  from 
the  state  treasurer.48 

4*  People  v.  Griffith,  245  HI.  532,  92  N.  E.  313. 
45  Estate  «£  Coogan,  27  Misc.  Kep.  563,  59  N.  Y.  Supp.  111. 
4«  Estate  <jf  Cameron,  97  App.  Div.  436,  89  N.  Y.  Supp.   977,  af- 
firmed,  181   N.   Y.   560,   74   N.   E.    1115.    ' 

47  Esta*«  of  Park,  8  Misc.  Eep.  550,  29  N.  Y.  Supp.  1081. 

48  Estate  of  Howard,  54  Hun,  305,   7  N.  Y.  Supp.  594;   Estate  of 
tfatt,  54  Hun,  637,  7  N.  Y.  Supp.  595. 


PAYMENT   AND   ENFORCEMENT   OF   TAX.  351 

When  no  appeal  has  been  taken,  within  the  time 
allowed  by  law,  from  an  order  fixing  an  inheritance  tax, 
the  order  becomes  conclusive,  and  it  has  been  held  that 
the  surrogate  has  no  authority  to  modify  it  and  allow 
a  partial  refund  of  the  tax  for  a  debt  of  the  estate  sub- 
sequently discovered.49  But  according  to  another  de- 
cision, an  error  in  including  an  item  for  taxation  may 
be  corrected  within  two  years  from  the  e.ntry  of  the 
order  fixing  the  tax,  and  a  refund  of  the  tax  ordered.50 
This  rule  is  based  upon  a  statute  authorizing  the  sur- 
rogate, if  application  therefor  is  made  within  a  speci- 
fied time,  to  direct  taxes  to  be  refunded.51 

Since  a  refund  of  taxes  paid  is  in  the  nature  of  a 
privilege  rather  than  an  absolute  right,  the  legislature 
may  attach  conditions  to  its  exercise,  and  one  of  these 
may  be  that  a  claim  for  a  refund  will  be  barred  if  not 
made  within  a  specified  time.02 

A  temporary  payment  made  to  the  state  controller 
on  account  of  the  inheritance  tax  is  deductible  from 
the  amount  finally  found  due ;  and  if  nothing  is  found 
to  be  due,  then  it  should  be  refunded.53 

§  319.  Recovering  Back  Taxes. — The  general  rule 
is  well  settled  that  void  or  illegal  property  taxes,  after 
having  been  paid  with  knowledge  of  the  facts,  and 
without  fraud  or  compulsion,  cannot  be  recovered  back 
from  the  state  or  municipality  at  the  suit  of  the  tax- 
payer.54 This  rule  is  applicable  to  voluntary  payments 
of  inheritance  taxes,  unless  the  statute  makes  provision 

49  Estate  of  Hamilton,  41  Misc.  Rep.  268,  84  N.  Y.  Supp.  44. 
eo  Estate  of  Willet,  51  Misc.  Rep.  176,  100  N.  Y.  Supp.  850. 
•i  Estate  of  Sherar,  25  Misc.  Rep.  138,  54  N.  Y.   Supp.  930. 

62  Estate  of  Hoople,  179  N.  Y.  308,  72  N.  E.  229. 

63  Estate  of  Skinner,  106  App.  Div.  217,  94  N.  Y.  Supp.  144;  People 
v.  Williams,  69  Misc.  Rep.  402,   127  N.  Y.  Supp.  749. 

64  See.  note  in  94  Am.  St.  Rep.  425. 


353  INHERITANCE  TAXATION. 

for  refunding  them  or  permitting  their  recovery  in 
case  they  have  been  improperly  exacted." 

The  law  of  some  states  contemplates  that  when  prop- 
erty taxes  are  paid  under  protest  that  they  are  illegal, 
or  with  notice  that  the  payer  denies  their  legality  and 
intends  to  sue  to  recover  them  back,  a  sufficient 
foundation  for  such  suit  is  laid;  and  this  rule,  where 
recognized,  would  seem  applicable  to  inheritance  taxes. 
But  however  this  may  be,  it  has  been  decided  that  pay- 
ment of  such  taxes,  upon  the  demand  of  the  collector, 
coupled  with  a  threat  that  unless  promptly  paid  they 
will  be  enforced  with  interest  and  penalty,  is  an  invol- 
untary payment,  which  will  serve  as  the  basis  for  an 
action  to  recover  back  the  money.56 

In  Iowa  a  taxpayer  cannot  recover  interest  in  his 
suit  to  recover  an  excess  of  inheritance  tax  paid  under 
protest.  The  statute  permitting  such  recovery  does 
not  provide  for  the  payment  of  interest  to  any  claimant 
for  taxes  overpaid;  it  creates  no  liability  against  the 
state  for  the  use  of  the  money."  But  in  New  York  it 

85  Estate  of  Coogan,  27  Misc.  Rep.  563,  59  N.  Y.  Supp.  Ill;  Estate 
of  Mather,  90  App.  Div.  382,  85  N.  Y.  Supp.  657,  179  N.  Y.  526,  71 
N.  E.  1134. 

Under  the  Wisconsin  statute,  one  who  is  aggrieved  by  the  orders  of 
the  county  court  in  fixing  and  assessing  the  inheritance  tax  is  not  re- 
quired to  appeal,  but  may  sue  to  recover  back  the  tax :  Beals  v.  State,  139 
Wis.  544,  121  N.  W.  347. 

Where  one  has  voluntarily  paid  a  transfer  tax  in  New  York  under 
a  mistake  of  law  which  is  not  discovered  until  after  the  court  of  last 
resort  has  decided  the  property  not  subject  to  the  tax,  the  surrogate  will 
not  grant  him  relief,  since  it  is  important  that  there  shall  be  finality  to 
decree  imposing  the  tax:  Estate  of  Von  Post,  35  Misc.  Eep.  367,  71  N. 
Y.  Supp.  1039. 

Where  a  tax  has  been  paid  under  a  statute  subsequently  declared 
unconstitutional,  the  amount  thereof  may  be  recovered  back:  Miller 
v.  Howey  (Estate  of  Wood),  91  App.  Div.  3,  86  N.  Y.  Supp.  269; 
Estate  of  Scrimgeour,  80  App.  Div.  388,  80  N.  Y.  Supp.  636,  175 
N.  Y.  507,  67  N.  E.  1089. 

e«  Herold  v.  Kahn,  159  Fed.  608,  86  C.  C.  A.  598,  163  Fed.  947,  90  C. 
C.  A.  307. 

•T  Wieting  v.  Morrow,  151  Iowa,  590,  132  N.  W.  193. 


PAYMENT  AND  ENFORCEMENT  OF  TAX.  353 

has  been  decided  that  where  the  state  or  municipality 
becomes  liable  to  refund  a  transfer  tax  because  it  was 
illegal"  or  void,  the  right  to  interest  follows  without  any  f 
express  provision  on  the  subject.  The  tax  in  respect 
to  which  this  decision  was  rendered  was  paid  under  a 
statute  afterward  declared  unconstitutional.  More- 
over, the  general  law  in  that  state  for  the  assessment 
and  collection  of  taxes  on  property  provides  that  in 
case  of  payment  of  an  illegal  or  excessive  tax,  sub- 
sequently corrected  by  the  courts,  it  shall  be  repaid  to 
the  taxpayer  with  interest.58 

§  320.  Interest  and  Penalties. — In  order  to  encour- 
age the  prompt  payment  of  inheritance  taxes,  the  law 
usually  allows  a  discount  if  they  are  paid  witTiin  a 
specified  time  after  their  accrual,  and  imposes  interest 
if  payment  is  delayed  beyond  a  certain  time.  In  case 
payment  is  still  further  delayed,  a  higher  rate  of  inter- 
est, or  a  penalty,  is  added,69  except  where  there  has 
been  necessary  litigation  or  other  unavoidable  causes 
for  delay  in  the  settlement  of  the  estate  and  the  ascer- 
tainment of  the  tax.80  But  while  delays  due  to  such 

68  Estate  of  O'Berry,  179  N.  Y.  285,  72  N.  E.  109. 

8»  Bradford  v.  Storey,  189  Mass.  104,  75  N.  E.  256;  Estate  of  San- 
ford  (Neb.),  133  N.  W.  870;  Estate  of  Wormser,  51  App.  Div.  441,  64 
N.  Y.  Supp.  897;  Sprankle  v.  Commonwealth,  2  Walk.  (Pa.)  420; 
Commonwealth  v.  Smith,  20  Pa.  100;  Estate  of  Lines,  155  Pa,  378,  26 
Atl.  728. 

«o  People  v.  Prout  (Estate  of  Prout),  53  Hun,  541,  6  N.  Y.  Supp. 
457;  Estate  of  Bolton,  35  Misc.  Eep.  688,  72  N.  Y.  Supp.  430;  Estate 
of  Bates,  7  Ohio  N.  P.  625,  5  Ohio  S.  &  C.  P.  Dec.  547 ;  Miller  v.  Com- 
monwealth, 111  Pa.  321,  2  Atl.  492;  Appeal  of  Commonwealth,  128  Pa. 
603,  18  Atl.  386;  State  v.  Pabst,  139  Wis.  561,  121  N.  W.  351. 

An  executor  is  responsible  for  the  amount  of  interest  and  penalties 
imposed  by  the  New  Jersey  statute  regulating  the  payment  of  the 
collateral  inheritance  tax,  resulting  from  his  neglect  to  pay  the  tax 
within  the  limit  of  time  required  to  prevent  such  additional  charges  to 
the  estate:  Wyckoff  v.  O'Neil,  71  N.  J.  Eq.  729,  71  Atl.  388. 

Section  2650  of  the  New  York  Code  of  Civil  Procedure,  suspending 
action  by  an  executor  after  he  has  been  served  with  a  citation  upon  a 
petition  to  revoke  probate  until  a  decree  is  made  in  the  proceeding,  does 
M 


354  INHERITANCE  TAXATION. 

causes  may  be  ground  for  remitting  the  penalty,  or  the 
increased  interest,  they  do  not  prevent  the  imposition 
Nof  the  ordinary  interest  from  the  time  the  statute  de- 
clares it  shall  run.61 

Where,  after  the  accrual  of  an  inheritance  tax,  the 
statute  imposing  it  is  repealed  and  a  new  one  enacted 
with  a  clause  saving  any  "right  accruing,  accrued  or 
acquired"  under  the  law  repealed,  the  persons  subject 
to  the  tax  are  entitled  to  any  immunities  or  privileges 
in  respect  to  the  time  of  payment  that  were  provided 
by  the  repealed  statute,  and  it  governs  the  liability  for 
interest  and  penalties." 

not  take  away  the  right  to  charge  interest,  prior  to  such  decree,  on  a 
tax  imposed  by  the  transfer  tax  act;  the  case  is  provided  for  by  the 
provision  of  the  act  directing  that  a  modified  rate  of  interest  should 
be  charged  where,  "by  reason  of  claims  made  upon  the  estate,  neces- 
sary litigation  or  other  unavoidable  cause  of  delay,  the  estate"  cannot 
be  settled:  Estate  of  Stewart,  131  N.  Y.  274,  14  L.  R.  A.  836,  30  N.  E. 
184. 

Relief  from  the  penalty  will  not  be  granted  when  the  only  reasons 
advanced  therefor  are  that  the  executor  was  ignorant  of  the  law 
and  hardship  will  result  to  the  legatees:  Estate  of  Platt,  8  Misc.  Rep. 
144,  29  N.  Y.  Supp.  396. 

It  is  the  duty  of  executors,  where  a  part  of  the  the  estate  cannot  be 
settled  up  within  the  year,  to  estimate  the  amount  thus  suspended,  and 
pay  the  collateral  inheritance  tax  on  the  balance;  otherwise  they  are 
chargeable  with  interest  thereon  at  the  rate  of  twelve  per  cent  per  an- 
num: Appeal  of  Commonwealth,  34  Pa,  204. 

«i  People  v.  Rice,  40  Colo.  508,  91  Pac.  33,  a  leading  case  holding 
that  six  per  cent  interest  was  payable  from  the  death  of  the  decedent, 
although  his  will  was  contested  and  suits  were  brought  against  a  corpora- 
tion in  which  he  was  a  stockholder,  which  suits,  if  successful,  would 
have  rendered  his  estate  insolvent:  Estate  of  Miller,  182  Pa.  157,  37 
Atl.  1000,  holding,  where  there  had  been  unavoidable  delay  in  the  settle- 
ment of  an  estate,  the  penalty  should  not  be  imposed  but  interest  should 
be  required  after  the  expiration  of  one  year  from  the  death  of  the 
decedent,  although  a  large  portion  of  the  estate  did  not  come  into  the 
executor's  hands  until  after  such  year  had  elapsed;  Estate  of  Moore, 
90  Hun,  162,  35  N.  Y.  Supp.  783,  holding,  in  case  of  unavoidable  delay 
and  several  years'  litigation,  no  penalty  should  be  exacted,  but  interest 
should  be  paid  as  part  of  the  tax;  Shelton  v.  Campbell,  109  Tenn.  690, 
72  S.  W.  112. 

«z  Estate  of  Fayerweather,  143  N.  Y.  114,  38  N.  E.  278;  Estate  of 
Milne,  76  Hun,  328,  27  N.  Y.  Supp.  727;  Estate  of  Moore,  90  Hun,  162, 
85  N.  Y.  Supp.  783. 


FORMS.  355 


CHAPTER  XXII. 

FORMS. 

§  339.  Explanatory. 

§  340.  Petition  for  Appointment  of  Appraiser  in  Estate  of  Resident 
Decedent. 

§  341.  Petition  for  Appointment  of  Appraiser  in  Estate  of  Nonresi- 
dent Decedent. 

§  342.  Order  Appointing  Appraiser. 

§  343.  Oath  of  Appraiser. 

§  344.  Appraiser's  Notice  of  Hearing. 

§  345.  Affidavit  of  Mailing  of  Notice  of  Hearing. 

§  346.  Subpoena  of  Appraiser. 

§  347.  Bequest  to  Superintendent  of  Insurance. 

§  348.  Report  of  Appraiser. 

§  349.  Order  fixing  Tax. 

§  350.  Notice    of   Assessment   of   Tax   by   Surrogate. 

§  351.  Notice  of  Appeal  to  Surrogate. 

§  352.  Order  on  Appeal. 

§  353.  Notice  of  Appeal  to  Appellate  Division. 

§  354.  Petition  for  Remission  of  Penalty. 

§  355.  Notice   of  Motion  to  Remit  Penalty. 

§  356.  Order  Remitting  Penalty. 

§  357.  Petition  for  Order  Fixing  Tax  Without  Appraiser. 

§  358.  Order  Fixing  Tax  Where  No  Appraiser  Appointed. 

§  359.  Petition  to  Declare  Estate  Exempt. 

§  360.  Order  Exempting  Estate. 

§  361.  Order  Remitting  Report  to  Appraiser. 

§  362.  Composition    Agreement. 

§  363.  Waivers  of  Notice  by  Controller. 

§  364.  Affidavits  for  Appraisal  of  Nonresident's  Estate. 

§  365.  Memorandum  Used  by  Appraisers  of  New  York  County  for 
Preparation  of  Affidavits. 

§  366.  District    Attorney    Proceedings — Petition    for    Citation. 

§  367.  District   Attorney   Proceedings — Order   for   Citation. 

§  368.  District   Attorney   Proceedings — Citation. 

§  369.  District  Attorney  Proceedings — Order  Appointing  Appraiser. 

§  370.  District  Attorney  Proceedings — Decree  Fixing  Tax,  Directing 
Payment,  .etc. 

§  339.  Explanatory. — When  the  variations  in  the  statu- 
tory provisions  and  the  court  procedure  in  the  different 
American  commonwealths  are  considered,  it  becomes  ob- 
vious that  to  draft  a  set  of  inheritance  tax  forms  adapted, 
in  all  details,  to  the  practice  in  the  different  states  of  the 


356  INHERITANCE  TAXATION. 

Union  would  be  impracticable.  Nevertheless,  it  is  believed 
that  the  different  jurisdictions  have,  in  matters  of  procedure, 
enough  in  common  so  that  forms  suited  to  one  will  be  a 
substantial  aid  in  others  as  indicating  the  steps  to  be  taken 
in  any  proceeding,  the  points  essential  to  be  stated,  and  the 
phraseology  suitable  for  clothing  them. 

It  has  therefore  been  thought  expedient,  in  this  book,  to 
give  the  forms  adapted  to  some  particular  state ;  and  as  the 
litigation  'has  been  more  extensive,  and  hence  presumably 
the  practice  has  become  better  settled,  in  New  York  than 
elsewhere,  that  state  has  been  selected  as  a  model.  With 
modifications  here  and  there  to  meet  local  conditions,  it  is 
believed  that  the  New  York  forms  will  prove  very  service- 
able and  satisfactory  in  any  jurisdiction ,  for  they  have  been 
prepared  by  Edward  H.  Fallows,  Esq.,  of  the  New  York  Bar, 
whose  wide  experience  in  inheritance  tax  matters  peculiarly 
qualifies  him  for  this  work.  These  forms  appeared  originally 
in  his  book  on  the  "Collateral  Inheritance  and  Transfer  Tax 
Law  of  the  State  of  New  York,"  and  have  been 'received 
with  unusual  favor  by  the  legal  profession.  They  are  here 
printed  with  his  permission. 

§  340.    Petition  for  Appointment  of  Appraiser  in  Estate  of 
Resident  Decedent. 


Surrogate's  Court,  County  of 

In  the  Matter  of  the  Transfer 
Upon  the  Estate  of 

Deceased. 

To  the  Surrogate's  Court  of  the  County  of 

The  petition  of respectfully  shows :. 

-  First.    That  your  petitioner  is  the 


decedent,  and  as  such  a  person  interested  in  the  estate  of  the 
said  decedent. 

Second.  That  the  said  decedent  departed  this  life  on  the 
. .  i . . .  day  of ,  at ;  that  the  said  de- 
cedent was  a  resident  of 

Third.  That  letters on  the  estate  of  said  dece- 
dent were,  on  the day  of ,  issued  to  your 

petitioner  by  the  Surrogate's  Court  of  the  County  of 
,  and  that  h . .  postoffice  address  is  : . . . 

Fourth.  That,  as  your  petitioner  is  informed  and  believes, 
the  property  of  said  decedent,  or  some  portion  thereof  or 
some  interest  therein,  is  or  may  be  subject  to  the  payment  of 


FORMS.  357 

the  tax  imposed  by  the  law  in  relation  to  taxable  transfers 
of  property. 

Fifth.  That  all  persons  who  are  interested  in  said  estate 
and  who  are  entitled  to  notice  of  all  proceedings  herein,  and 
their  postoffice  addresses,  are  as  follows: 

Controller,  Albany,  N.  Y. 


That  all  the  above  named  are  of  full  age  and  sound  mind, 
except  

Wherefore  your  petitioner  prays  that  you  will  designate 
an  appraiser,  as  provided  by  law. 

Dated,    ,    , 

Petitioner. 

County  of 


'  jss.: 


,  being  duly  sworn,  deposes  and  says :  That  .  .he  is 

the  petitioner  herein ;  that  . .  he  has  read  the  foregoing  petition 
subscribed  by  h . .  and  knows  the  contents  thereof ;  that  the 
same  is  true  to  h. .  own  knowledge,  except  as  to  the  matters 
therein  stated  to  be  alleged  upon  information  and  belief, 
and  as  to  those  matters  . .  he  believes  it  to  be  true. 


Sworn  to  before  me,  this day  of 


§  341.    Petition  for  Appointment  of  Appraiser  in  Estate  of 
Nonresident  Decedent. 

Surrogate's  Court, County. 

In  the  Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 


Deceased. 

To  the  Surrogate's  Court: 

The  petition  of respectfully  shows : 

First.    That  he  is  the  Controller  of  the  State  of  New  York. 

Upon  information  and  belief: 

Second.     That  on  or  about  the day  of , 

,  then  residing  without  the  State  of  New  York, 

was  seised   and  possessed  of  property  in  the  County   of 

and  State  of  New  York  subject  to  taxation  under 

the  Act  in  relation  to  Taxable  Transfers  of  Property  to  the 
value  and  upwards  of  ten  thousand  dollars  ($10,000),  and 


358  INHERITANCE  TAXATION. 

that  on  the  said day  of the  said  decedent 

departed  this  life. 

Third.  That  said  decedent  made  a  last  Will  and  Testa- 
ment, which  was  thereafter  and  on  or  about  the day 

of ,  duly  admitted  to  probate  by  the Court 

of  the  County  of ,  State  of ,  by  the 

terms  of  which  said  decedent  appointed 

Fourth.  That  said  property,  or  some  part  thereof,  is  sub- 
ject to  the  Act  in  relation  to  Taxable  Transfers  of  Property ; 
that  no  payment  of  such  tax  has  been  made,  and  that  no  pro- 
ceeding has  been  brought  to  fix  and  determine  the  same  by 
the  representatives  of  said  decedent,  although  said  property 
has  been,  or  is  about  to  be,  removed  from  the  State  of  New 
York  without  the  payment  of  said  tax. 

That  no  application  for  letters,  ancillary  or  otherwise,  has 
been  made  by  the  representatives  of  said  decedent  in 
County. 

Fifth.  That  all  the  persons  who  are  interested  in  said  es- 
tate and  who  are  entitled  to  notice  of  all  proceedings,  and 
their  addresses,  are  as  follows : 

Controller,  Albany,  N.  Y. 


Wherefore,  your  petitioner  prays  for  the  appointment  of 
some  competent  person  as  appraiser,  as  provided  by  law. 
Dated,  Albany,  N.  Y. 


Note:    Verification  same  as  for  resident  petition. 

§  342.    Order  Appointing  Appraiser. 

At  a    Surrogate's    Court,  held  in  and    for  the  County  of 

,  at  the  County  Courthouse  in  the 

of ,  on  the day  of 

Present :  Hon ,  Surrogate. 

In  the  Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 


Deceased. 

On  reading  and  filing  the  petition  of of  said  de- 
cedent, I  do  hereby,  pursuant  to  the  requirement  of  Chapter 

658  of  the  Laws  of  19. . .,  direct ,  Esq.,  to  fix  the 

fair  market  value  of  the  property  which  was  of  the  above- 


FORMS.  359 

named  decedent  and  which  is  subject  to  the  payment  of  any 
tax  imposed  by  Article  X,  Chapter  908,  Laws  of  19. . .,  and 
the  Acts  amendatory  thereof  and  supplemental  thereto. 

§  343.    Oath  of  Appraiser. 
Surrogate 's  Court,   County. 

In  the  Matter  of  the  Transfer  Tax' 
Upon  the  Estate  of 


State  of  New  York, 
County  of 


Deceased. 

) 


,  being  duly  sworn,  doth  depose  and  say  that  he 

is  the  appraiser  appointed  in  this  case    by  order  of  Hon. 

,  Surrogate,  dated  the day  of , 

under  and  in  pursuance  of  Article  X  of  the  Tax  Law,  as 
amended,  in  relation  to  Taxable  Transfers,  and  that  he  will 
faithfully  and  fairly  perform  the  duties  of  such  appraiser, 
according  to  the  best  of  his  understanding. 


Sworn  to  before  me,  this day  of 


§  344.    Appraiser's  Notice  of  Hearing. 

Surrogate 's  Court,  County  of  

In  the  Matter  of  the  Transfer  Tax" 
Upon  the  Estate  of 

Deceased. 

You    will    please  to  take    notice  that,  by    virtue  of  an 

order   of  Hon ,  Surrogate    of  the    County  of 

,  made  and  dated  the day  of , 

19. . .,  and  pursuant  to  provisions  of  Chapter  908  of  the  Laws 
of  19. . .,  relating  to  Taxable  Transfers  of  property,  and  the 

acts    amendatory    thereof,    I    shall    on    the   day  of 

,  19 . . . ,  at   o  'clock  in  the noon  of 

that  day,  at ,  in  the  ,  proceed  to  ap- 
praise at   its  fair   market    value  all   the    property  of  said 

,   deceased,  late  of    ,   passing  by  h . . 

last  Will  and  Testament  (or  by  the  Intestate  Laws  of  the 


360  INHERITANCE  TAXATION. 

State  of  New  York),  which  is  subject  to  the  payment  of  the 
tax  imposed  by  the  said  Act  and  the  Acts  amendatory 
thereof. 

And  such  of  you  as  are  hereby  notified  as  are  under  the 
age  of  twenty-one  years,  are  required  to  appear  by  your 
guardian,  if  you  have  one,  or,  if  you  have  none,  to  appear 
and  apply  for  one  to  be  appointed,  or  in  the  event  of  your 
neglect  or  failure  to  do  so,  a  guardian  will  be  appointed  by 
the  Surrogate  to  represent  and  act  for  you  in  the  proceeding. 


Appraiser. 

, ,19... 

To  . 


§  345.    Affidavit  of  Mailing  of  Notice  of  Hearing. 
County  of ,  ss. : 

,  a  Clerk  in ,  being  duly  sworn,  says, 

that  he  is  over  eighteen  years  of  age,  and  that  on  the 

day  of  ,  19. . .,  he  deposited  in  the postoffice,  at 

,  a  copy  of  the  foregoing  notice,  contained  in 

securely  closed  post-paid  wrappers,  directed  to  each  of  the 
above-mentioned  persons,  respectively,  at  the  address  set 
opposite  their  names,  being  all  the  persons  known  to  have 
or  claim  an.  interest  in  the  property  passing  by  the  will  of 

,  or  by  the  Intestate  Laws  of  this  State,  which  is 

subject  to  the  payment  of  the  tax  imposed  by  the  said  acts. 


Sworn  to  before  me,  this 19 ... 

§  346.    Subpoena  of  Appraiser. 

The  People  of  the  State  of  New  York,  to 


Greeting : 
We  command  you,  That  all  business  and  excuses  being  laid 

aside,  you  and  each  of  you  appear  and  attend  at 

in ,  in  the  City  of ,  on  the day 

of    ,   19...    at    o'clock,   in  the    noon, 

before  the  undersigned,  heretofore  duly  designated  by  the 

Hon ,  Surrogate  of  the   County   of , 

under  the  Transfer  Tax  Acts  as  Appraiser,  in  a  certain  pro- 
ceeding now  pending  in  the  Surrogate's  Court  for  the 
County  of ,  entitled  "In  the  matter  of  the  Ap- 
praisal under  the  Transfer  Tax  Acts  of  the  property  of 
,  deceased,"  to  testify  what  you  and  eaeh  of  you 


FORMS. 


361 


may  know  concerning  the  estate  of  the  said  decedent,  on  the 
part  of  (the  Controller  of  the  State  of  New  York),  and  that 
you  bring  with  you  and  then  and  there  produce  at  the  time 
and  place  aforesaid 

and  for  a  failure  to  attend,  you  will  be  deemed  guilty  of  a 
contempt  of  Court,  and  liable  to  pay  all  loss  and  damages 
sustained  thereby  to  the  party  aggrieved,  and  forfeit  Fifty 
Dollars  in  addition  thereto. 

Witness, ,  Appraiser,  at  No , 

in   the    and    City    of ,  the  

day  of ,  one  thousand  nine  hundred  and 

•  ••••• > 

Appraiser. 

§  347.    Request  to  Superintendent  of  Insurance. 

Chambers  of  the  Surrogate 's  Court, 
County  of , 

Estate  of , 

Deceased. 

Date  of  death 

Dear  Sir :  In  pursuance  of  Chapter  483,  Laws  of  19 . . . , 
and  the  acts  amendatory  thereof  and  supplemental  thereto, 
you  are  hereby  requested  to  determine  and  ascertain  the 
values  of  the  following  Estates,  Annuities  and  Interests. 


NAME. 


AGE. 


LEGACY  OB  ESTATE. 


Value 
or  Amount. 


To 


Superintendent  of  the  Insurance  Department. 
Yours  respectfully, 


Surrogate. 


362  INHERITANCE  TAXATION. 

§  348.    Report  of  Appraiser. 
Surrogate 's  Court,  County  of , 

In   the   Matter   of   the   Appraisal    of*^ 

the  Estate  of  ,  Deceased,  I  • 

Under  the  Acts  in  Relation  to  the  j- 
Taxable  Transfers  of  Property.        J 

Decedent  died  ,  19...,  a  legal  resident  of  the 

County  of and  State  of 

Report  of  Appraiser. 
To  Hon 

Surrogate  of County,  New  York. 

I,  the  undersigned  appraiser,  who  was  by  an  order  of  the 

Surrogate  of County,  duly  made  and  entered  on 

the day  of ,  19 . . . ,  directed  to  appraise  the 

property  of  said  decedent,  at  its  fair  market  value  at  the 
time  of  the  transfer  thereof,  in  pursuance  of  the  laws  in  rela- 
tion to  Taxable  Transfers  of  Property, 

Do  Respectfully  Report: 

First.  That  pursuant  to  Chapter  908  of  the  Laws  of  19. . . 
as  amended,  I  duly  took  and  subscribed  the  oath  prescribed 
by  Statute,  and  filed  the  same  as  therein  provided. 

Second.     That  on  the day  of  ,  19 . . . ,  I 

gave  notice  by  mail,  postage  prepaid,  to  such  persons,  cor- 
porations, etc.,  known  to  have,  or  claim  an  interest  in  any 
property  of  said  decedent  subject  to  the  payment  of  any  tax 
imposed  by  said  laws,  including  the  Controller  of  the  State 
of  New  York  (and  those  persons  and  corporations  named 
by  the  Surrogate  in  his  said  order),  of  the  time  and  place 
at  which  I  would  appraise  said  property,  a  true  copy  of 
which  notice  together  with  proof  of  mailing  is  hereto  an- 
nexed. 

That  the  names  of  those  to  whom  I  mailed  such  notices, 
properly  addressed,  as  appears  by  proof  of  mailing,  are  as 
follows : 
State  Controller,  Albany,  N.  Y. 


Surrogate. 


FORMS. 


363 


Third.    At  the  time  and  place  in  said  notice  stated,  namely, 

on  the day  of ,  19 . . . ,  (and  at  other  and 

subsequent  times  and  divers  places  to  which  these  proceed- 
ings were  regularly  adjourned),  I  appraised  all  the  prop- 
erty, real  and  personal,  of  which  the  said  decedent  died 
possessed,  and  subject  to  the  payment  of  said  Transfer  Tax, 
at  its  fair  market  value  at  the  time  of  said  transfer,  as  fol- 
lows, namely: 

Personal  Estate. 

(It  is  desired  that  the  appraiser  should  classify  the  prop- 
erty in  the  following  order:—!,  Bonds;  2,  Stocks;  3,  Bonds 
and  Mortgages  on  real  estate,  promissory  notes,  etc. ;  4,  Cash 
in  Banks;  5,  All  other  Personal  Property.) 


DESCRIPTION  OF  PROPERTY. 

Par  value. 

Fair  market 
value  at  time 
of  decedent's 
death. 

Total  

364 


INHERITANCE  TAXATION. 


Real  Estate. 

(If  the  real  estate  of  decedent  passes  by  will  or  the  Statute 
of  Descent  to  Persons,  or  by  will  to  Corporations  or  In- 
stitutions, exempt  by  said  Acts,  do  not  appraise  the  same.) 


BRIEF  DESCRIPTION. 

Fair  market 
value  at  time 
of  decedent's 
death. 

Total  

Fourth.  I  further  report  that  decedent's  estate  is  subject 
to  the  following  deductions  on  account  of  debts,  claims,  ex- 
penses of  administration  and  commissions,  as  follows: 


DEBT  OR  CLAIM  OF. 


Total. 


Nature  of  same. 


Amount. 


FORMS. 


365 


Recapitulation. 
Fifth'.. 

Total  amount  of  decedent's  personal  estate $ 

Total  amount  of  decedent's  real  estate  devised 
to  persons,  corporations  or  institutions,  or 
passing  by  the  Statute  of  Descent  to  persons, 
other  than  such  as  are  exempt  by  said  Acts . .  $ 

Total $ 

From  which  debts,  expenses  of  administration, 

etc.,  as  enumerated  in  the  "Fourth"  Finding 

above,  are  to  be  deducted,  amounting  to. . .  .$ 

Leaving  the  sum  of $ 


which  is  the  net  estate  transferred  by  testator's  will,  (or  the 
intestate  laws  of  the  State)  as  follows: 


NAMES  AND  RESIDENCE 
OP      THE      PERSONS, 
CORPORATIONS  OR  IN- 
STITUTIONS  RECEIV- 
ING ANY  PROPERTY. 

Relation  to 
decedent. 

Nature  of  in- 
terest (ab- 
solute o  r 
otherwise). 

Value  of  Property  or  In- 
terest Transferred. 

Total 
amount 
trans- 
ferred. 

To  lineals. 
to  l%class 

To  all  others, 
to  5%  class. 

Real 

Personal 

Real 

Personal 

Real 

Personal 

Real 

Personal 

Real 

Personal 

Real 

Personal 

— 

Total  estate  transferred  to  lineals.  .$| 

..$ 

Total  estate  transferred  to  all  others  

Total  amount  of  property  transferred  . 

..* 

366  INHERITANCE  TAXATION. 

Sixth.     I  further  report  that  all  of  said  persons  interested 
in  said  estate  are  of  sound  mind,  and  of  full  age,  except, .... 


Seventh.     I  further  report  that  the  following  appearances 
were  made  before  me  in  this  proceeding : 


Eighth.     I  further  report  as  follows : 

Name  of  Decedent,   

Date  of  Decedent 's  death, 

Decedent  was  a  resident  of  the of 

County  of ,  State  of 

Decedent  left will. 

Letters   were  issued  by  the  Surrogate  to  the 

County  of  ,  to   


whose  Postoffice  address  is, 


That  the  6  months  limitation  expires  on  the day  of 

,19... 

That  the  18  months  limitation  expires  on  the day  of 

,19... 

Ninth.  I  further  report  that  attached  hereto  is  all  the 
testimony  taken  by  me,  and  the  copies  of  all  papers  pre- 
sented to  me  in  this  proceeding,  namely: 


Tenth.  I  do  further  report,  that  the  said  decedent  made 
no  transfer  of  any  property  by  deed,  grant,  bargain,  sale  or 
gift  in  contemplation  of  death,  or  intended  to  take  effect  in 
possession  or  enjoyment  at  or  after  the  death  of  said  dece- 
dent. 

I  further  report  that  there  was  no  necessary  litigation,  or 
unavoidable  cause  of  delay,  by  reason  of  any  claim  made 
upon  the  estate  of  said  decedent,  or  any  litigation  pending 
in  which  the  estate  of  said  decedent  was  interested. 


FORMS.  367 

Eleventh.     I  do  further  report, 


All  of  which  is  respectfully  submitted,  in  duplicate,  at  .... 
,  this day  of ,  19 ... 


Appraiser. 
(Attach  all  testimony,  exhibits  and  papers  here.) 

§  349.    Order  Fixing  Tax. 

At   a    Surrogate's    Court,    held   in    and    for   the  County  of 

,  at  the  County  Courthouse,  in  the 

of  ,  on  the   day  of  , 

19... 

Present :  Hon ,  Surrogate. 

In  the  Matter  of  the  Transfer  Tax^j 
Upon  the  Estate  of  I 

'  I 

Deceased.     J 

Upon  reading  the  report  of  the  appraiser, , 

Esq.,  duly  filed  herein  on  the day  of ,  . . . ., 

wherein  it  appears  that  said  decedent  died  on  the   

day  of ,  . . . . ,  and  upon  motion  of , 

Attorney  for  the   , 

It  is  Ordered  and  Adjudged 

That  the  cash  value  of  the  property  referred  to  in  said 
report,  the  transfer  of  which  is  subject  to  the  tax  imposed 
by  the  act  in  relation  to  taxable  transfers  of  property  and 
the  tax  to  which  said  transfers  are  liable  is  as  follows: 


BENEFICIARY. 


Cash  value  of 
interest. 


Tax  assessed 
thereon. 


368 


INHERITANCE  TAXATION. 


§  350.    Notice  of  Assessment  of  Tax  by  Surrogate. 
Surrogate 's  Court,   County. 

In  the  Matter  of  the  Transfer  Tax' 
Upon  the  Estate  of 


Deceased. 

To : 

You  are  hereby  notified  that  I  have  assessed  and  fixed  the 
cash  value  of  such  interest,  estate,  legacy  or  property  as  you 
and  each  of  you  are  entitled  to  receive  from  the  estate  of  said 

,  deceased,  and  the  amount  of  the  tax  to  which 

the  same  is  liable,  under  the  laws  in  relation  to  taxable 
transfers  of  property,  as  follows: 


PROPERTY. 

Persons  entitled  to 
such  property. 

Cash 
value. 

Tax. 

§  351.    Notice  of  Appeal  to  Surrogate. 

Surrogate's  Court,   County. 

In  the  Matter  of  the  Appraisal' 
Under  the  Act  in  Relation  to 
Taxable  Transfers  of  Property  of 
the  Property  of 

•  • •• > 

Deceased. 

Sirs  :— 

Please  take  notice  that  is  dissatisfied  with 

the  appraisement  herein  of  the  property  of  the  said , 

deceased,  and  hereby  objects  to  the  report  of  the  Appraiser 

filed  herein  on ,  . . . . ,  and  to  the  order  or  decree 

made  herein,  fixing,  assessing  and  determining  the  transfer 
tax  in  respect  of  the  property  of  the  said  decedent  and  en- 
tered herein  on ,  and  hereby  appeals  to  the  Sur- 
rogate from  the  said  appraisal  and  said  assessment  and 
determination  of  said  tax  and  from  the  said  order  or  decree. 


POEMS.  369 

The  grounds  upon  which  said  appeal  is  taken  are: 

Dated,   

•••> 

Attorney  for 


To 

,  Esqs., 

Attorneys  for 


To 

,  Esq., 

Clerk  of  the  Surrogate's  Court, 

County. 

§  352.    Order  on  Appeal. 

At  a  Surrogate's  Court,  held  in   and  for  the  County  of 

,  at  the  County  Courthouse,  in  the 

of ,  on  the day  of ,  19 ... 

Present :  Hon , 

In  the. Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 


Deceased. 

An  appeal  having  been  taken  by  the from  the 

order  fixing  tax  entered  herein  on  the  day  of  .... 

,  19 . . . ,  upon  the  report  of  the  appraiser  filed 

herein  on  the  day  of ,  19 . . . ,  on  the 

grounds  that  the  as  more  fully  set  forth  and 

described  in  the  notice  of  appeal  duly  filed  herein, 

And  said  appeal  coming  on  to  be  heard,  after  hearing 

,  Esq.,  for  the  ,  Appellant,  and 

,  Esq.,  for  the  ,  Respondent. 

Now,  on  motion  of ,  Attorney  for  the 

It  is  Ordered  and  Adjudged 

That  said  appeal  be  and  the  same  hereby  in  all  respects  is 


It  is  Further  Ordered  and  Adjudged 

24 


370  INHERITANCE  TAXATION. 

§  353.    Notice  of  Appeal  to  Appellate  Division. 
Surrogate 's  Court,  County  of , 

In  the  Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 


Deceased. 

Sirs  :— 

Please  take  notice  that  A.  B.,  executor  of  the  last  will  and 
testament  (or  administrator  of  the  goods,  chattels  and 
credits)  of  C.  D.,  deceased,  hereby  appeals  to  the  Appellate 
Division  of  the  Supreme  Court  of  the  State  of  New  York 
for  the  Department,  from  the  order  of  the  Sur- 
rogate of  the  County  of  ,  heretofore  made  and 

entered  herein,  on  the day  of  ,  affirming 

the  order  theretofore  made  and  entered  on  the   

day  of   ,  fixing  a  tax  upon  the   estate  of  said 

decedent  under  the  act  relating  to  Taxable  Transfers  and 
from  each  and  every  part  thereof  (or  from  so  much  thereof 
as  purports  to  fix  a  tax  upon,  etc.). 

Dated,  the day  of 

Yours,   etc., 


Attorney  for  C.  D.,  executor  of  the  Last  Will  and  Testament 
(or  administrator  of  the  goods,  chattels  and  credits) 
of  E.  F.,  deceased,  appellant. 

To    ,  Esq., 

Clerk  of  the  Surrogate's  Court  of  the  County  of 

To    Esq., 

Attorney  for  the  Controller  of  the  State  of  New  York,  or 
County  Treasurer  of  the  County  of  


FORMS.  371 

§  354.    Petition  for  Remission  of  Penalty. 
Surrogate 's  Court,  County  of  

In  the  Matter  of  the  Transfer  Tax' 
Upon  the  Estate  of 


Deceased. 

To  the  Surrogate 's  Court  of  the  County  of : 

The  petition  of    respectfully  shows : 

That  he  resides  at of 

That  said  decedent  died  on  the day  of , 

,  a  resident  of  

That  proceedings  have  been  had  herein  for  the  determina- 
tion of  the  transfer  tax  upon  the  estate  of  said  decedent  as 
follows : 


That  more  than  eighteen  months  have  elapsed  since  the 
date  of  death  of  said  decedent  and  a  penalty  of  10%  per 
annum  from  the  date  of  death  to  the  date  of  payment  as 
provided  by  statute  is  due  because  of  the  nonpayment  of 
this  tax. 

That  by  reason  of   

(state  the  cause  of  delay  in  payment  of  the  tax.  It  must  be 
unavoidable,  such  as  litigation,  etc.) 

That  your  petitioner  is  desirous  of  paying  such  tax  and 
that  in  order  to  obtain  the  proper  final  receipt  therefor  from 
the  State  Controller  your  petitioner  makes  this  application 
pursuant  to  the  provisions  of  said  act  for  the  remission  of  the 
penalty,  incurred  by  reason  of  the  nonpayment  of  such  tax 
within  eighteen  months  after  the  date  of  death  of  said 
decedent,  from  10%  to  interest  at  6%. 

"Wherefore  your  petitioner  prays  that  an  order  be  made 
remitting  the  penalty  upon  the  tax  heretofore  fixed  herein 
from  10%  to  6%,  to  be  charged  upon  said  tax  from  the  ac- 
crual thereof,  to  wit :  from  the  date  of  death  of  said  decedent 
to  the  date  of  payment;  provided  such  payment  be  made 
within days  from  the  date  of  the  entry  of  the  order 


372  INHERITANCE  TAXATION. 

of  the  surrogate  on  this  application;  and  that  your  peti- 
tioner have  such  further  or  other  relief  as  to  the  Court  may 
seem  just  and  proper. 

§  355.    Notice  of  Motion  to  Remit  Penalty. 
Surrogate 's  Court,   County. 

In  the  Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 


Deceased. 

Please  take  notice  that  on  all  the  papers  and  proceedings 
herein  and  on  the  affidavit  herewith  served  of  A.  B.,  (ex- 
ecutor or  administrator  of  ,  deceased),  verified 

on  the day  of ,  I  will  apply  to  the  Sur- 
rogate of  the  County  of ,  at  a  Surrogate 's  Court 

(or  at  Chambers  of  the  Surrogate)  to  be  held  in  said  county 

in   on  the   day  of  ,  at  10 :30 

o'clock  in  the  forenoon,  or  as  soon  thereafter  as  counsel 
can  be  heard,  for  an  order  remitting  the  penalty  of  10% 
upon  the  tax  heretofore  fixed  upon  the  estate  of  the  above- 
named  decedent,  by  order  of  the  Surrogate  of  said  County 

made  and  entered  the ,  day  of ,  to  interest 

at  the  rate  of  6%  per  annum  from  the  date  of  the  accrual 
of  the  said  tax,  to  wit:  the  date  of  the  death  of  the  said 

decedent,  which  occurred  on  the  . . day  of , 

until  the  date  of  the  payment  of  "said  tax,  provided  said 

payment  be  made  within days  after  the  entry  of  the 

order  of  the  said  Surrogate  to  be  made  upon  this  applica- 
tion. 

Dated,  the day  of 

To  Hon 

Controller  of  the   State   of  New  York    (or  Hon. 

,     County    Treasurer    of    the 

County  of ). 


FORMS.     .  373 

§  356.    Order  Remitting  Penalty. 

At  a  Surrogate's  Court  held  in   and  for  the  County  of 

,  at  the  County  Courthouse,  in  the 

of  ,  on  the  day  of ,  19 ... 

Present :  Hon ,  Surrogate. 

In  the  Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 


Deceased. 

Upon  reading  and  filing  the  petition  of ,  duly 

verified  on  the day  of ,  wherein  it  ap- 
pears that  payment  of  the  transfer  tax  as  heretofore  fixed 
has  been  unavoidably  delayed  and  good  cause  having  been 
shown  for  such  nonpayment  and  due  notice  of  motion  hav- 
ing been  given  to ,  Esq.,  attorney  for  the  State 

Controller,  now  on  motion  of ,  Esq.,  attorney 

for  the  petitioner  herein,  it  is 

Ordered  and  Adjudged  that  the  penalty  of  10%  upon 
said  tax  be  remitted  and  that  interest  be  charged  thereupon 
at  the  rate  of  6%  from  the  date  of  accrual  of  said  tax,  to 

wit :  the day  of , ,  the  date  of  death 

of  said  decedent,  to  the  date  of  payment  thereof,  pro- 
vided that  -payment  be  made  within days  after  the 

entry  of  this  order. 

§  357.    Petition  for  Order  Fixing  Tax  Without  Appraiser. 
Surrogate's  Court,  County  of  

In  the  Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 


Deceased. 

To  the  Surrogate's  Court  of  the  County  of  : 

The  petition  of  respectfully  shows  that  he 

resides  at ,  in  the of 

That  said  decedent  died  on  the day  of , 

,  and  that  at  the  time  of  h. .  death  was  a  resident  of 


That  said  decedent  left  a  last  will  and  testament,  which 
was  duly  admitted  to  probate  by  the    Court  of 


374  INHERITANCE  TAXATION. 

,  ,  and  letters  testamentary  were  duly  is- 
sued to  deponent, ,  who  has  duly  qualified  and 

is  now  acting  as  such. 

That  hereto  annexed  and  marked  Schedule  "A"  is  a  list 
of  all  the  property,  real  or  personal,  of  which  said  decedent 
died  seised  and  possessed,  including  any  interest  accrued 
thereon  at  date  of  death. 

That  hereto  annexed  and  marked  Schedule  "B"  and 
made  a  part  hereof  is  an  itemized  list  of  all  the  debts  of 
said  decedent  which  were  due  and  owing  at  the  time  of 
death,  funeral  and  administration  expenses,  and  commis- 
sions of  the  executor. 

That  hereto  annexed  and  marked  Schedule  "C"  is  a  true 
copy  of  the  last  will  and  testament  of  said  decedent. 

That  hereto  annexed  and  marked  Schedule  "D"  is  a  list 
of  the  beneficiaries  under  the  last  will  and  testament,  with 
their  addresses  and  the  share  of  the  estate  received  by  them. 

That  all  the  parties  in  interest,  namely,  those  persons  men- 
tioned in  Schedule  "D,"  are  alive,  of  full  age  and  sound 
mind,  except: 


Your  petitioner  therefore  pray;s  that  said  Surrogate  ap- 
praise the  value  of  said  decedent's  estate  and  fix  the 
amount  of  tax  assessable  thereon  without  the  appointment 
of  an  appraiser. 

Note:  In  addition  to  the  averments  in  said  petition  it 
should  be  stated  specifically  whether  decedent  died  pos- 
sessed of  any  silverware,  jewelry,  household  furniture,  per- 
sonal effects,  statuary,  works  of  art,  paintings,  pictures, 
books,  bric-a-brac,  mortgages,  promissory  notes  or  any  in- 
terest therein,  any  claims  or  unlisted  securities  which  are 
alleged  to  be  less  than  their  face  value,  any  real  estate  in  the 
State  of  New  York.  If  there  is  a  life  estate,  give  name  and 
age  of  life  tenant  and  name  of  remainderman.  State 
whether  decedent  made  any  transfer  or  conveyance  of  real 
or  personal  property  prior  to  death  in  contemplation  of 
death  or  intended  to  take  effect  at  or  after  death;  if  so,  what 
property  and  of  what  value.  State  whether  deponent  has 
made  diligent  search  for  property  of  every  kind,  nature 
and  description  left  by  decedent  and  that  .  .he  has  been 
able  to  discover  only  that  mentioned  in  h . .  affidavit,  and 
that  he  verily  believes  that  decedent  left  no  property,  either 
real  or  personal,  except  that  set  forth  in  the  petition.  State 


FORMS.  375 

whether  decedent  had  any  life  insurance,  any  interest  in 
any  business  or  interest  in  any  other  estate;  whether  any 
reversion  fell  in  by  reason  of  said  decedent's  death;  whether 
decedent  had  any  interest  in  any  copartnership  or  any 
business  and  the  value  thereof.  State  whether  decedent 
was  given  power  of  disposition  of  property  by  the  will  of 
another. 


§  358.    Order  Fixing  Tax  Where  No  Appraiser  Appointed. 

At  a  Surrogate's  Court,  held  in  and  for  the  County  of 

,  at  the  County  Courthouse,  in  the 

of  ,  on  the  day  of   ,  19 ... 

Present :  Hon ,    Surrogate. 

In  the  Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 


Deceased. 

Upon  reading  and  filing  'the  petition  of ,  duly 

verified  on  the  day  of ,  ,  wherein 

it  appears  that  said  decedent  died  on  the day  of 

,  ,  and  due  notice  of  motion  having  been 

given  to  ,  Esq.,  attorney  for  the  State  Con- 
troller, on  motion  of  ,  Esq.,  attorney  for 

the  petitioner,  it  is 

Ordered  and  Adjudged  that  the  cash  value  of  the  prop- 
erty referred  to  in  said  petition,  the  transfer  of  which  is 
subject  to  the  tax  imposed  by  the  act  relating  to  taxable 
transfers  of  property  and  the  tax  to  which  said  transfers 
are  liable  is  as  follows: 


BENEFICIARY. 


Cash  value  of 
interest. 


Tax  assessed 
thereon. 


376  INHERITANCE  TAXATION. 

§  359.    Petition  to  Declare  Estate  Exempt. 
Surrogate 's  Court,  County  of  


In  the  Matter  of  the  Transfer  Tax 


Deceased. 


To  the  Surrogate's  Court  of  the  County  of : 

The  petition  of respectfully  shows  that  ..he 

resides  at ,  in  the  of 

That  said  decedent  died  on  the day  of , 

,  and  that  at  the  time  of  h . .  death  was  a  resident 

of  ....,  

That  said  decedent  left  a  last  will  and  testament,  which 

was  duly  admitted  to  probate  by  the Court  of 

,  ,  and  letters  testamentary  were  duly  is- 
sued to  deponent,  ,  who  has  duly  qualified  and 

is  now  acting  as  such. 

That  hereto  annexed  and  marked  Schedule  "A"  is  a  list 
of  all  the  property,  real  or  personal,  of  which  said  decedent 
died  seised  or  possessed,  including  any  interest  accrued 
thereon  at  date  of  death. 

That  hereto  annexed  and  marked  Schedule  "B"  and  made 
a  part  hereof  is  an  itemized  list  of  all  the  debts  of  said  de- 
cedent which  were  due  and  owing  at  the  time  of  death, 
funeral  and  administration  expenses,  and  commissions  of 
the  executor. 

That  hereto  annexed  and  marked  Schedule  "C"  is  a  true 
copy  of  the  last  will  and  testament  of  said  decedent. 

That  hereto  annexed  and  marked  Schedule  "D"  is  a  list 
of  the  beneficiaries  under  the  last  will  and  testament,  with 
their  addresses  and  the  share  of  the  estate  receive^  by  them. 

That  all  the  parties  in  interest,  namely,  those  persons 
mentioned  in  Schedule  "D"  are  alive,  of  full  age  and  sound 
mind,  except: 


Your  petitioner  therefore  prays  the  Surrogate  to  enter  an 
order  herein  exempting  from  tax  under  the  act  in  relation 


FORMS.  377 

to  taxable  transfers  of  property  the  property  referred  to  in 
this  petition. 

(See  note  attached  to  "petition  for  order  fixing  tax  with- 
out appointment  of  appraiser"  for  further  averments.) 

§  360.    Order  Exempting  Estate. 

At  a  Surrogate's  Court,  held   in  and  for  the  County  of 

,  at  the  County  Courthouse,  in  the 

of ,  on  the day  of ,  19. .. 

Present :  Hon ,   Surrogate. 


In  the  Matter  of  the  Transfer  Tax 


Deceased. 


Upon  reading  and  filing  the  petition  of ,  duly 

verified  on  the day  of ,  ,  wherein 

it  appears  that  the  transfer  of  the  property  of  said  decedent 
is  not  subject  to  tax  under  the  act  relating  to  taxable  trans- 
fers of  property,  and  upon  due  notice  of  motion  having  been 
given  to ,  Esq.,  attorney  for  the  State  Con- 
troller, now  on  motion  of ,  Esq.,  attorney  for 

the  petitioner  herein,  it  is 

Ordered  and  Adjudged  that  the  transfer  of  property  of 
which  said  decedent  died  seised  and  possessed  and  referred 
to  in  said  petition  is  exempt  from  tax  under  the  act  in 
relation  to  taxable  transfers  of  property. 

§  361.    Order  Remitting  Report  to  Appraiser. 

At   a   Surrogate's  Court,   held   in  and  for  the  County   of 

,  at  the  County  Courthouse,  in  the 

of ,  on  the day  of ,  19. .. 

Present :  Hon ,  Surrogate. 

In  the  Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 


Deceased. 

Upon  reading  and  filing  the  annexed  consent  of , 

Esq.,  attorney  for  the  State  Controller,  and  , 

Esq.,  attorney  for  the  ,  and  upon  the  affidavit  of 

,  dated  the  day  of  ,  ,  it  is 


378  INHERITANCE  TAXATION. 

Ordered  and  Adjudged  that  the  report  of  the  appraiser 

duly  filed  herein  on  the day  of , 

be  remitted  to  him  for  further  consideration  and  report 
as  to. ..... 

§  362.    Composition  Agreement. 
Surrogate 's  Court,   County. 

In    the    Matter    of    the    AppraisaP 
Under    the    Act    in    Relation    to 
Taxable  Transfers  of  Property  of 
the  Estate  of 


Deceased. 

Whereas  it  appears  from  the  report  in  the  above-entitled 
proceeding  of  ,  Esq.,  the  appraiser  duly  ap- 
pointed herein  to  appraise  the  property  of  the  said , 

late  of  ,  deceased,  which  report  bears  date  the 

day  of  ,  ,  with  reference  to  cer- 
tain interests  in  remainder  created  by  the  last  will  and 
testament  of  decedent  in  the  following  terms: 


Whereas  it  further  appears  by  said  report  that  "As  H 
is  impossible  now  to  determine  to  whom  the  aforesaid  re- 
mainders after  the  foregoing  life  estates  will  eventually 
pass  on  the  death  of  the  life  tenants,  the  same  are  not  at 
present  taxable"  and  that  the  State  Superintendent  of  In- 
surance has  ascertained  and  determined  the  aggregate 
value  of  the  said  remainder  interests  to  be  $ ,  and 

Whereas  ( ,)  the  executor  of  the  said  estate,  is 

desirous  of  personally  settling  all  claims  of  the  people  of  the 
State  of  New  York,  upon,  or  in  respect  to  said  property  and 
estate,  or  any  part  thereof,  for  any  transfer  tax  which  may 
now  be  due  and  payable  or  which  may  hereafter  become  pay- 
able under  the  Laws  of  the  State  of  New  'York  and  of  com- 
pounding all  such  taxes  payable  upon  said  remainder  in- 
terests, upon  terms  which  are  equitable  and  expedient  as 
by  law  in  that  case  made  and  provided. 

Now  therefore  it  is  hereby  stipulated  and  agreed  upon  the 
facts  and  circumstances  aforesaid,  and  in  consideration  of  the 
premises,  that  the  transfer  tax  payable  in  respect  to  said  re- 
mainders be  and  the  same  hereby  is  ascertained,  fixed,  com- 
pounded and  adjusted  at  the  sum  of  $ ,  which  sum 


FORMS.  379 

shall  be  accepted  by  the  Honorable ,  as  Controller 

of  the  State  of  New  York,  by  and  with  the  approval  of  the 

Honorable ,  Attorney  General  of  the  State  of  New 

York,  in  full  payment,  satisfaction  and  discharge  of  all 
transfer  taxes  which  are  payable,  or  which  but  for  this  agree- 
ment may  at  any  time  hereafter  become  due  and  payable  to 
the  State  of  New  York,  under  or  by  virtue  of  the  Laws  of 
the  State  of  New  York,  upon,  or  in  respect  to  the  property 

and  estate  of ,  deceased,  or  any  part  thereof,  or 

upon  and  in  respect  to  any  and  all  interests  therein,  or  in 
respect  to  the  transfer  thereof  or  by  virtue  of  the  said  Will. 

In  witness  whereof  the  said  ,  executor  of  the 

estate  of  ,  deceased,  and  Hon ,  Con- 
troller of  the  State  of  New  York,  have  signed  and  acknowl- 
edged these  presents  in  triplicate  on  the  day  of 

,  one  thousand  nine  hundred  and. 

Approved. 


Attorney  General. 

State  of  

County  of 


'  las.: 


On  this day  of ,  one  thousand  nine  hun- 
dred and ,  before  me  personally  came , 

to  me  known  and  known  to  me  to  be  the  executor  of  the 
estate  of ,  deceased,  and  who  executed  the  fore- 
going instrument  and  he  thereupon  duly  acknowledged  to 
me  that  he  executed  the  same. 

State  of  New  York,        )  ^  . 
County  of ,    j 

On  this day  of ,  one  thousand  nine  hun- 
dred   and    ,   before   me   personally    came,   Hon. 

,  to  me  known  and  known  to  me  to  be  the  Con- 
troller of  the  State  of  New  York,  and  who  executed  the 
foregoing  instrument  and  he  thereupon  duly  acknowledged 
to  me  that  he  executed  the  same. 


380  INHERITANCE  TAXATION. 

§  363.    Waivers  of  Notice  by  Controller. 

Dear  Sirs: — 

Re  Estate  of 

The  Controller  of  the  State  of  New  York  hereby  waives 
the  issuance  of  the  ten  days'  notice,  required  by  Section 
228  of  the  Taxable  Transfers  Law,  for  the  opening  of  the 
safe  deposit  box  in  your  custody  belonging  to  this  estate, 
and  further  consents  to  the  transfer  of  any  securities,  or 
other  property  found  therein,  to  the  representatives  of  said 
decedent. 

Very  truly  yours, 


Attorney  for  State  Controller. 
Dear  Sirs: — 


Ee  Estate  of 


The  Controller  of  the  State  of  New  York  hereby  waives 
the  issuance  of  the  ten  days'  notice,  required  by  Section  228 
of  the  Taxable  Transfers  Law,  and  further  consents  to  the 
transfer,  by  you,  to  the  representatives  of  this  estate,  of  the 
following  personal  property,  now  standing  on  your  books  in 
the  name  of  decedent : 


Very  truly  yours, 

> 

Attorney  for  State  Controller. 

§  364.    Affidavits  for  Appraisal  of  Nonresident's  Estate. 
Surrogate 's  Court,   County. 

In  the  Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 


Deceased. 

State  of  

County  of 

,  being  duly  sworn,  deposes  and  says: 

I.     That  .  .he  resides  at 

IE.    That   said    decedent    died    on    the    day    of 

,  19 . . . ,  intestate,  and  that  thereafter  deponent 


FORMS.  381 

was   appointed   administra . . .  by   the  Court  of  the 

County  of ,  State  of ,  on  the    

day  of ,19... 

III.  That  deponent  duly  qualified  and  is  now  acting  as 
administra ....  of  this  estate. 

IV.  That  hereto  annexed  and  made  a  part  hereof  is  an 
itemized  statement  marked  "A,"  of  all  the  property,  real 
and  personal,  of  which  said  decedent  died  seised  and  pos- 
sessed, situated  within  the  State  of  New  York,  and  an  item- 
ized statement,  marked  "B,"  of  all  the  personal  property 
situated  without  the  State  of  New  York. 

V.  That  at  the  time  of  h ...  death,  decedent  had  no  safe 
deposit  box,  no  bonds,  public  or  private,  no  mortgages  and 
no  money  within  the  State  of  New  York;  ..he  had  no  in- 
terest in  any  business  or  copartnership  carried  on  therein; 
..he  owned  no  shares  of  stock  in  National  banks  situated 
therein  and  owned  no    shares  of  stock  in  corporations  or- 
ganized and  existing  under  the  laws  of  the  State  of   New 
York;   ..he  owned  no  jewelry,  horses,  carriages  or  furni- 
ture ;  arid  was  possessed  of  no  other  personal  property  of 
any  kind  whatsoever  in  said  state  except  as  set  forth  in  said 
schedule  "A." 

VI.  That  the  decedent  at  the  time  of  h. .  death  owned  no 
real  estate  situated  within  the  State  of  New  York. 

VII.  That  prior  to  h. .  death,  decedent  made  no  transfer 
of  property  in  the  State  of  New  York  by  deed,  grant,  bar- 
gain, sale,  or  gift  in  contemplation  of  death  or  intended  to 
take  effect  at  or  after  death ;  that  the  decedent  had  no  power 
of    appointment    over   property,  real    or   personal,  located 
therein. 

VIII.  That  the  fair  market  value  of  the  entire  personal 
estate  of  said  decedent  at  the  time  of  h..  death  whereso- 
ever situated,  was  the  sum  of  $ 

That  the  funeral  expenses  of  said  decedent  amounted  to 
the  sum  of  $ 

That  the  debts  itemized  in  a  statement  hereto  annexed, 
marked  ''C,"  due  and  owing  by  decedent  at  the  time  of  h. . 
death,  exclusive  of  funeral  expenses,  mortgages  on  real 
estate,  inheritance  taxes  paid  to  the  United  States  Govern- 
ment or  to  any  Foreign  or  State  Government  or  loans  se- 
cured by  collateral,  amount  to  the  sum  of  $ 

That  the  administration  expenses  incurred,  and  to  be  in- 
curred, exclusive  of  expenses  in  the  preceding  paragraphs 
amount  to  the  sum  of  $ 


382 


INHERITANCE  TAXATION. 


That    the    commissions   allowed    me    as     administra .... 
amount  to  the  sum  of  $ 

IX.  That  all  the  parties  in  interest  are  alive,  of  full  age 
and  sound  mind,  unless  otherwise  stated  in  the  following 
paragraph : 

X.  That  all  the  persons  who  are  entitled  to  share  in  the 
estate  of  said  decedent,  their  addresses,  ages,  the  amount  of 
their  shares  and  their  relationship  to  decedent,  are  as  fol- 
lows: 


NAME  AND  RELATIONSHIP. 


Age. 


Address. 


Share 
(percent). 


Sworn  to  before  me,  this day  of ,  19 . 

> 

> 

(Attach  County  Clerk's  certificate.) 

Surrogate's  Court, County. 

In  the  Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 

Deceased. 
State  of 1 

\      gg       .  V 

County  of   J 

,  being  duly  sworn,  deposes  and  says: 

I.     That  .  .he  resides  at 

n.  That  said  decedent  died  on  the  day  of 

,  ,  a  resident  of  ,  State  of 

,  leaving  a  last  will  and  testament,  which  was 

duly  admitted  to  probate  by  the  ,  State  of 

,  on  the day  of , 

III.  That  deponent  was  appointed     ^e     executor  of  said 
will,  has  duly  qualified  and  is  now  acting  as  such  executor. 

IV.  That  hereto  annexed  and  made  a  part  hereof  is  an 
itemized  statement  marked  "A,"  of  all  the  property,  real 
and  personal,  of  which  said  decedent  died  seised  and  pos- 
sessed,   situated    within  the    State  of    New  York,  and  an 


FORMS.  383 

itemized  statement,  marked  "B,"  of  all  the  personal  prop- 
erty situated  without  the  State  of  New  York. 

V.  That  at  the  time  of  his  death,  decedent  had  no  safe 
deposit  box,  no  bonds,  public  or  private,  no  mortgages  and 
no  money  within  the  State  of  New  York ;  he  had  no  interest 
in  any    business  or    copartnership    carried  on    therein;  he 
owned    no    shares    of    stock    in    national     banks    situated 
therein   and  owned  no  shares  of  stock  in   corporations  or- 
ganized and  existing  under  the  laws  of  the  State  of  New 
York;  he  owned  no  jewelry,  horses,  carriages  or  furniture; 
and  was  possessed  of  no  other  personal  property  of  any  kind 
whatsoever  in  said  State  except  as  set  forth  in  said  schedule 
"A." 

VI.  That  the  decedent  at  the  time  of  his  death  owned  no 
real  estate  situated  within  the  State  of  New  York. 

VII.  That  prior- to  his  death,  decedent  made  no  transfer 
of  property  in  the  State  of  New  York  by  deed,  grant,  bar- 
gain, sale  or  gift  in  contemplation  of  death,  or  intended  to 
take  effect  at  or  after  death;  that  decedent  had  no  power 
of    appointment   over   property,    real  or   personal,  located 
therein. 

VIII.  That  the  fair  market  value  of  the  entire  personal 
estate  of  said  decedent  at  the  time  of  his  death  wheresoever 
situated  was  the  sum  of  $ 

That  the  funeral  expenses  of  said  decedent  amounted  to 
the  sum  of  $ 

That  the  debts  itemized  in  a  statement  hereto  annexed, 
marked  "C,"  due  and  owing  by  decedent  at  the  time  of  his 
death,  exclusive  of  funeral  expenses,  mortgages  on  real  es- 
tate, inheritance  taxes  paid  to  the  United  States  Govern- 
ment, or  to  any  Foreign  or  State  Government,  or  loans  se- 
cured by  collateral,  amount  to  the  sum  of  $ 

That  the  administration  expenses  incurred  and  to  be  in- 
curred, exclusive  of  expenses  in  the  preceding  paragraphs, 
amount  to  the  sum  of  $ 

That  the  commissions  allowed  me  as  executor  amount  to 
the  sum  of  $ 

IX.  That  annexed  hereto,    marked  schedule  "D"  and 
made  a  part  hereof  is  a  true  copy  of  said  decedent 's  last  will 
and  testament. 

X.  That  all  the  parties  in  interest  are  alive,  of  full  age 
and  sound  mind,  unless  otherwise  stated  in  the  following 
paragraph. 

XI. 


384  INHERITANCE  TAXATION. 

Sworn  to  before  me,  this day  of ,  19. .. 


(Attach  County  Clerk's  certificate.) 

§  365.    Memorandum    Used  by   Appraisers  of  New  York 
County  for  Preparation  of  Affidavits. 

In  appraisal  proceedings,  affidavits  should  embody  the  fol- 
lowing facts,  and  should  state  each  in  detail: 

1.  Date  of  death. 

2.  Residence  at  time  of  death. 

3.  Did  decedent  leave  a  will?    If  so,  annex  a  certified 
copy,  or  swear  that  the  annexed  is  a  true  copy.    Also  state 
when  and  where  said  will  was  probated,  and  date  when  let- 
ters were  issued,  and  to  whom. 

4.  Name  and  address  of  executors  or  administrators. 

5.  Personal    property    itemized,    setting    forth    par    and 
market  value  of  each  item  at  date  of  decedent's  death,  and 
how  the  value  thereof  was  ascertained. 

State  specifically  whether  decedent  died  possessed  of  any 
silverware,  jewelry,  household  furniture,  personal  effects, 
statuary,  works  of  art,  paintings,  pictures,  books,  bric-a-brac, 
etc. 

If  assets  include  stocks  or  bonds,  state  details,   as  per 
example : 
100  shares  Erie  R.  R.  common  stock,  par  value 

100,  123,4  $1,275  00 

100  shares  Erie  R.  R.  preferred  stock,  par  value 

100,  3734  3,775  00 

100  shares  Erie  R.  R.  2d  preferred  stock  par 

value  100,  at  19y2 1,950  00 

One  $1,000  bond  Chicago  &  Northwestern,  con- 
solidated, 7's,  due  1915,  at  137V2 1,375  00 

One    $1,000   bond    Chicago    &    Northwestern, 

gold,  7's,  due  1902,  at  10$ 1,090  00 

One  $1,000  bond  Chicago  &  Northwestern  Ex- 
tension, 4's,  due  1926,  at  108y2 1,085  00 

One  $1,000  bond  Chicago  &  Northwestern  Sink- 
ing Fund,  6's,  due  1929,  at  118 1,180  00 

In  addition,  if  securities  are  unlisted,  state  capitalization, 
kind  of  business,  itemized  statement  as  to  assets,  values 
thereof,  itemized  statement  of  liabilities,  dividends  paid, 
and  date  of  maturity,  with  such  other  facts  as  may  be 


FORMS.  385 

pertinent,  affecting  their  value,  as  of  date  of  decedent's 
death. 

State  whether  decedent  died  possessed  of  mortgages  or 
promissory  notes  or  had  any  interest  accrued  thereon  and 
unpaid  at  date  of  decedent's  death. 

State  whether  there  are  any  claims  or  unlisted  securities 
which  are  alleged  to  be  of  less  than  their  face  value,  and 
state  particularly,  and  in  detail,  the  reasons  for  their  depre- 
ciation. 

State  whether  decedent  left  any  real  estate  in  the  State  of 
New  York.  If  same  is  taxable,  describe  it  in  detail,  with 
street  and  number,  City  and  County;  give  its  full  value  and 
assessed  value,  and  furnish  an  appraisal  thereof  by  a  com- 
petent real  estate  expert. 

State  relationship  of  decedent  to  beneficiaries. 

State  exemptions  claimed  and  itemize  same. 

If  there  is  a  life  estate,  give  name  and  age  of  life  tenant, 
and  name  of  remainderman. 

State  whether  any  party  in  interest  be  dead;  whether  he 
died  before  or  after  the  decedent,  and  give  name  of  his  sur- 
vivors if  they  are  interested. 

State  whether  decedent  made  any  transfer  or  conveyance 
of  real  or  personal  property  prior  to  death,  in  contemplation 
of  death,  to  take  effect  at  or  after  death.  If  yes,  what 
property,  and  of  what  value. 

State  whether  deponent  has  made  diligent  search  for 
property  of  every  kind,  nature  and  description,  left  by  the 
decedent,  and  that  he  has  been  able  to  discover  only  that 
mentioned  in  his  affidavit,  and  that  he  verily  believes  that 
decedent  left  no  property,  either  real  or  personal,  except 
that  set  forth  in  his  affidavit. 

If  debts  and  funeral  expenses  are  requested  to  be  de- 
ducted, itemize  the  same  and  state  whether  said  debts  were 
due  and  owing  at  the  date  of  death  of  the  decedent,  and 
have  been  paid  or  will  be  paid. 

Kindly  file  a  statement  of  the  amount  of  each  legacy  and 
distributive  share,  with  the  names  of  the  beneficiaries. 

State  whether  all  parties  in  interest  are  of  full  age  and  of 
sound  mind,  and  if  there  are  infants,  state  their  names  and 
•whether  they  are  under  or  over  fourteen  years  of  age. 

State  whether  decedent  had  any  life  insurance,  interest  in 
any  business,  or  in  any  estate,  and  if  so,  state  the  same  fully 
and  in  detail. 

25 


386  INHERITANCE  TAXATION. 

State  whether  any  reversion  fell  in  by  reason  of  decedent's 
death. 

If  decedent  left  any  interest  in  any  copartnership  or  any 
business,  state  fully,  in  itemized  form,  the  assets  of  the  same 
and  the  liabilities  thereof,  as  shown  by  the  books  for  several 
years  preceding  his  death. 

If  the  decedent  be  a  nonresident,  state,  in  itemized  form, 
the  value  of  the  personal  and  real  property  within  the  State 
of  New  York,  and  if  the  decedent  owned  any  shares  of  stock 
of  corporations  of  the  State  of  New  York  and  the  gross 
value  of  the  entire  personal  estate  wherever  situated. 

State  whether  the  decedent  was  a  member  of  any  Ex- 
change. 

State  whether  decedent  was  given  power  of  disposition  of 
property  by  the  will  of  another. 

§  366.    District    Attorney    Proceedings — Petition    for 
Citation. 

Surrogate 's  Court, County. 

In  the  Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 


Deceased. 

To  the  Surrogate's  Court  of  the  County  of : 

The  petition  of of  the  City  of re- 
spectfully shows: 

I.  That  your  petitioner  is  the  District  Attorney  of  the 
County  of 

Your  petitioner  further   alleges  upon   information   and 
belief: 

II.  That  on  or  about  the  day  of ,  at 

the  City  of , died  and  was  at  the  time 

of death  a  resident  of  the of 

and  County  of 

III.  (State  status  of  transfer  tax  proceeding  had,  if  any.) 

IV.  The  said  decedent  died  seised  or  possessed  of  prop- 
erty within  this  State,  or  subject  to  its  laws,  the  value  of 
which  exceeded  the  sum  of 

V.  That  upon  h . .  death  certain  of  the  property  of  said 
decedent  thereupon  passed,  to 


FORMS.  387 

VI.  That  the  property  so  passing,  or  some  part  thereof, 
is  subject  to  taxation  under  Chapter  908  of  the  Laws  of  19 . . . , 
and  the  acts  amendatory  thereof  and  supplemental  thereto. 

VII.  Your  petitioner  further  shows  that  the  Controller  of 
the  State  of  New  York  has  notified  your  petitioner  in  writ- 
ing of  the  refusal  or  neglect  of  the  persons  liable  therefor 
to  pay  the  said  tax,  and  that  no  part  of  said  tax  has  been 
paid,  and  your  petitioner  has  probable  cause  to  believe  that 
the  same  still  remains  due  and  unpaid. 

"Wherefore  your  petitioner  prays  that  a  citation  issue 

herein  to 

citing to  appear  before  this  Court  on  a  day  to  be 

designated  therein,  and  show  cause  why  the  tax  under  the 
act  aforesaid  should  not  be  paid  and  said  property  be  ap- 
praised if  necessary  for  that  purpose. 

Dated  the day  of 


District  Attorney  of  the  County  of 


State  of  New  York, 
County  of 

,  being  duly  sworn,  says  that  he  has  read  the 

foregoing  petition  and  knows  the  contents  thereof,  and  that 
the  same  is  true  to  the  knowledge  of  deponent,  except  as  to 
the  matters  therein  stated  to  be  alleged  upon  information 
and  belief,  and  as  to  those  matters  he  believes  it  to  be  true. 


Sworn  to  before  me,  this day  of 


Notary  Public, 
County. 


388  INHERITANCE  TAXATION. 

§  367.    District  Attorney  Proceedings — Order  for  Citation. 

At  a   Surrogate's   Court,   held  in  and   for  the  County  of 

,  at  the  Surrogate's  Office  in  the  County  of 

, ,  on  the day  of ,  19. . ., 

Present :  Hon ,  Surrogate. 

In  the  Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 


Deceased. 

On  reading  and  filing  the  petition  of ,  District 

Attorney  of  the  County  of ,  verified  the 

day  of ,  19 . . . ,  it  is 

Ordered  that  a  Citation  issue  herein  in  accordance  with 
the  prayer  of  eaid  petition. 


Surrogate. 

§  368.    District  Attorney  Proceedings — Citation. 

The  People  of  the  State  of  New  York, 
By  the  grace  of  God,  free  and  independent,  to 


You  and  each  of  you  are  hereby  cited  and  required  per- 
sonally to  be  and  appear  before  our  Surrogate  of  the  County 

of at  the  Surrogate's  Court  of  said  County,  held 

at  the  County  Courthouse  in  the  County  of . .  on 

the day  of ,  19 . . . ,  at  half -past  ten  o  'clock 

in  the  forenoon  of  that  day,  then  and  there  to  show  cause 
why  the  transfer  tax  provided  for  by  Chapter  908  of  the 
Laws  of  19 ...  of  the  State  of  New  York  and  the  acts  amenda- 
tory thereof  and  supplementary  thereto  should  not  be  paid 

on  property  passing  upon  the  death  of and  why 

such  property  should  not  be  appraised  according  to  law,  if 
necessary  for  that  purpose. 

And  such  of  you  hereby  cited  as  are  under  the  age  of 
twenty-one  years  are  required  to  appear  by  your  guardian 
if  you  have  one,  or  if  you  have  none,  to  appear  and  apply 
for  one  to  be  appointed,  or  in  the  event  of  your  neglect  or 
failure  to  do  so,  a  guardian  will  be  appointed  by  the  Surro- 
gate to  represent  and  act  for  you  in  the  proceeding. 


FORMS.  389 

In  testimony  whereof,  we  have  caused  the  seal  of  the  Sur- 
rogate's Court  of  the  County  of ,  to  be  hereunto 

affixed. 

Witness,  Hon 

Surrogate  of  our  said  County  at  the  City  of , 

the day  of ,  in  the  year  of  our  Lord  one 

thousand  nine  hundred  and  . 


Clerk  of  the  Surrogate's  Court. 

§  369.    District  Attorney   Proceedings — Order  Appointing 

Appraiser. 

At  a   Surrogate's   Court,  held  in    and  for   the    County  of 

,  at  the  Surrogate's  Office  in  the  Cpunty  of 

,  on  the day  of ,  19. ... 

Present :  Hon. ,  Surrogate. 

In  the  Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 


Deceased. 

On  reading  and  filing  the  petition  of ,  District 

Attorney  of  the  County  of ,  and  the  order  for  and 

citation  issued  thereon,  with  due  proof  of  service  thereof  and 
on  the  return  day  thereof  the  said  proceeding  having  been 
marked  for  an  order  designating  an  Appraiser,  I  do  hereby, 
pursuant  to  the  requirement  of  Chapter  658  of  the  Laws  of 

19 . .  ,  direct to  fix  the  fair  market  value  at  the 

time  of  the  transfer  of  the  property  which  was  of  the  above- 
named  decedent  and  which  is  subject  to  the  payment  of  any 
tax  imposed  by  Article  X,  Chapter  908,  Laws  of  19 . .  ,  and 
the  Acts  amendatory  thereof  and  supplemental  thereto. 


Surrogate. 


390  INHERITANCE  TAXATION. 

§  870.    District  Attorney  Proceedings — Decree  Fixing  Tax, 
Directing  Payment,  etc. 

At  a    Surrogate's   Court,  held  in    and  for   the    County  of 

,  at  the  County  Courthouse,  in  the 

of  ,  on  the  day  of   ,  19... 

Present :  Hon ,  Surrogate. 

In  the  Matter  of  the  Transfer  Tax 
Upon  the  Estate  of 


Deceased. 

Upon  reading  and  filing  the  report  of ,  Esq., 

the  appraiser  herein,  and  after  hearing  ,  on  be- 
half of  Hon ,  District  Attorney,  in  support  of 

said  report,  and ,  of  counsel  for  the  

herein,  in  opposition,  it  is 

Ordered :  1st — That  the  cash  value  of  the  property  re- 
ferred to  in  said  report,  which  is  subject  to  the  tax  imposed 
by  the  Act  relating  to  taxable  transfers,  and  the  tax  to  which 
the  said  transfers  are  liable,  is  as  follows: 


BENEFICIARY. 

Cash  value  of 
interest. 

Tax  assessed 
thereon. 

2d — That    the herein,   make  pay- 
ment to  the  Controller  of  the  State  of  New  York  of  the  sum 

of ,  $ being  the  amount  of  the  tax  upon 

the  interest  . .  of  said  . 


together  with  interest  upon  each  of  said  sums  respectively, 

at  the  rate  of per  centum  per  annum,  from  the 

day  of ,  19 . . . ,  to  the  date  of  payment. 

And  it  is  further  ordered,  That  said   pay  to 

Hon ,  District  Attorney,  the  sum  of 

dollars,  as  and  for  his  costs  and  disbursements  herein. 


AEKANSAS   STATUTE.  391 

CHAPTER  XXIII. 

ARKANSAS  STATUTE. 

(Acts  of  1901,  pp.  S95-299;  Kirby's  Digest,  pp.  242-2U;  Acts  of  1907,  pp. 
8S2-834;  Acts  of  1909,  pp.  904-910.) 

§  400.  Transfers  Subject  to  Tax. 

§  401.  Persons  Liable  for  Tax — Lien — Interest — Payment. 

§  402.  Eate  of  Taxation  in  Case  of  Lineal  Descendants. 

§  403.  Eate  of  Taxation  in  Case  of  Collateral  Relatives. 

§  404.  Rate  of  Taxation  in  Other  Cases. 

§  405.  Estates  for  Years  or  Life — Remainders. 

§  406.  Bequests  to  Executors  in  Lieu  of  Compensation. 

§  407.  Time  for  Payment — Interest. 

§  408.  Inventory — Collection  of  Tax. 

§  409.  Legacies  Charged  upon  Real  Estate — Collection  of  Tax. 

§  410.  Valuation  and  Appraisement  ctf  Property. 

§  411.  Jurisdiction  of  Probate  Court. 

§  412.  Account  of  Executor  not  Settled  Until  Tax  Paid. 

§  413.  Duty  of  Attorney  General — Appointment  and  Compensation  of  At- 
torneys. 

§  414.  Repeal  of  Conflicting  Acts. 

§  400.     Transfers  Subject  to  Tax. 

Sec.  1.  All  property  within  the  jurisdiction  of  this  state,  and  any  inter- 
est therein,  whether  belonging  to  inhabitants  of  this  state  or  not,  or  whether 
tangible  or  intangible,  which  shall  pass  by  will  or  by  the  intestate  laws  of 
this  state,  or  by  deed,  grant,  sale  or  gift  made  or  intended  to  take  effect  in 
possession  after  the  death  of  the  grantor  to  any  person  or  corporation  in 
trust  or  otherwise,  shall  be  liable  to  tax  for  the  use  of  the  state  at  the  rate 
hereinafter  specified.  (Acts  of  1909,  p.  905.) 

§  401.    Persons  Liable  for  Tax — Lien — Interest — Payment. 

Sec.  2.  All  executors,  administrators  and  other  trustees,  and  all  heirs  or 
beneficiaries  taking  under  a  will  or  by  virtue  of  the  intestate  laws,  and  any 
such  grantee  under  conveyance  made  during  life  of  the  grantor,  shall  be 
liable  for  all  such  taxes,  with  interest,  until  the  same  shall  have  been  paid 
as  herein  provided.  And  said  tax  shall  be  and  continue  a  lien  upon  the 
property  chargeable  therewith  until  paid  to  the  state;  provided,  that  all 
inheritance  taxes  shall  be  sued  for  within  five  years  after  they  are  due  and 
legally  demandable,  otherwise,  they  shall  be  presumed  to  be  paid  and  cease 
to  be  a  lien  as  against  any  purchasers  of  real  estate.  (Acts  of  1909,  p.  906.) 

§  402.    Bate  of  Taxation  in  Case  of  Lineal  Descendants. 

Sec.  3.  When  the  property  or  any  interest  therein  shall  pass  to  a  grand- 
father, grandmother,  father,  mother,  husband,  wife,  lineal  descendant, 


392  INHERITANCE  TAXATION. 

brother,  sister,  or  any  adopted  child,  in  every  such  case  the  rate  of  tax 
shall  be  one  dollar  on  every  hundred  dollars  of  the  clear  market  value  of 
such  property  received;  provided,  that  any  estate  which  may  b«  valued  at 
a  less  sum  than  five  thousand  ($5,000.00)  dollars  shall  not  be  subject  to  any 
tax,  the  excess  over  such  sum  only  being  taxed.  (Acts  of  1909,  p.  906.) 

§  403.    Bate  of  Taxation  in  Case  of  Collateral  Relatives. 

Sec.  4.  When  the  property  or  any  interest  therein  shall  pass  to  any 
uncle,  aunt,  niece,  nephew,  or  any  lineal  descendant  of  the  same,  in  every 
such  case  the  rate  of  tax  shall  be  two  dollars  on  every  one  hundred  dollars 
of  the  clear  market  value  of  such  property  received,  in  excess  of  the  sum 
of  $2,000.00.  (Acts  of  1909,  p.  906.) 

§  404.    Bate  of  Taxation  in  Other  Cases. 

Se<5.  5.  In  all  other  cases  the  rate  shall  be  as  follows:  On  each  and  every 
one  hundred  dollars  of  the  clear  market  value  of  all  property  and  at  the 
same  rate  for  any  less  amount,  on  all  estates  of  $10,000  and  less,  $3.00;  on 
$5.00;  on  all  estates  exceeding  $50,000.00,  $6.00.  Provided,  that  an  estate 
of  not  exceeding  $1,000.00  in  value  shall  not  be  subject  to  tax.  (Acts  of 
1909,  p.  906.) 

§  405.    Estates  for  Tears  or  Life — Remainders. 

Sec.  6.  When  any  person  shall  bequeath  or  devise  any  property  to  or 
for  the  use  of  grandfather,  grandmother,  father,  mother,  husband,  wife, 
lineal  descendant,  brother,  sister  or  any  child  thereof,  an  adopted  child 
or  any  heir  of  an  adopted  child,  or  any  lineal  descendant  thereof,  during 
life  or  for  a  term  of  years,  and  remainder  to  another,  the  value  of  the 
prior  estate  shall  within  sixty  days  after  the  death  of  the  testator,  b« 
appraised  in  the  manner  hereinafter  provided  and  shall  be  taxable  as  pro- 
vided in  the  preceding  sections;  and  the  inheritance  tax  on  the  remainder 
of  the  estate  shall  be  held  in  abeyance  until  the'  beneficiary  shall  come  into 
possession  of  same,  and  shall  thereupon  likewise  bo  taxable  as  therein  pro- 
vided. (Acts  of  1909,  p.  906.) 

§  406.    Bequests  to  Executors  in  Lieu  of  Compensation. 

Sec.  7.  Whenever  a  decedent  appoints  one  or  more  executors  or  trustees 
and  in  lieu  of  their  allowance  makes  a  devise-  or  bequest  of  property  to 
them  which  would  otherwise  be  liable  to  said  tax,  or  appoints  them  his 
residuary  legatees,  and  said  bequests,  devises  or  residuary  legacies,  exceed 
what  would  be  a  reasonable  compensation  for  their  services,  such  excess 
shall  be  liable  to  such  tax,  and  the  court  of  probate  having  jurisdiction  of 
their  accounts  shall  fix  the  amount  of  such  compensation.  (Acts  of  1909, 
p.  907.) 

§  407.    Time  for  Payment — Interest. 

Sec.  8.  All  taxes  imposed  by  this  Act  shall  be  due  and  payable  to  the 
treasurer  of  the  state  by  the  executors,  administrators,  trustees,  heirs  or 
beneficiaries,  at  the  death  of  the  decedent,  and  if  paid  within  twelve  months 


ARKANSAS   STATUTE.  393 

no  interest  shall  be  charged  and  collected  thereon,  but  if  not  paid  interest 
at  the  rate  of  nine  per  cent  per  annum  shall  be  charged  and  collected  from 
the  time  said  tax  became  due.  (Acts  of  1909,  p.  907.) 

§  408.    Inventory — Collection  of  Tax. 

Sec.  9.  It  shall  be  the  duty  of  every  administrator,  executor  or  trustee 
having  in  charge  or  trust  any  property  subject  to  said  tax  to  file  in  the 
probate  court  of  the  county  of  the  decedent's  death  in  addition  to  the  in- 
ventory of  personal  property  now  required,  a  true  inventory  of  the  real 
estate  owned  by  the  decedent  at  the  date  of  his  death,  and  to  collect  the 
tax  thereon  from  the  devisee  or  person  entitled  to  said  property;  and  he  shall 
not  deliver  any  specific  legacy  or  property  subject  to  said  tax  to  any  person 
until  he  has  collected  the  tax  thereon.  (Acts  of  1909,  p.  907.) 

§  409.    Legacies  Charged  upon  Real  Estate — Collection  of  Tax. 

Sec.  10.  Whenever  any  legacies  subject  to  said  tax  shall  be  charged  upon 
or  payable  out  of  any  real  estate,  the  heir  or  devisee,  before  paying  the 
same  shall  deduct  said  tax  therefrom  and  pay  it  to  the  executor,  adminis- 
trator or  trustee,  and  the  same  shall  remain  a  charge  upon  said  real  estate 
until  it  is  paid;  and  payment  thereof  shall  be  enforced  by  the  executor, 
administrator  or  trustee  in  the  same  manner  as  the  payment  of  the  legacy 
itself  could  be  enforced.  If  any  such  legacy  be  given  in  money  to  any 
person  for  a  limited  period,  such  administrator,  executor  or  trustee  shall 
retain  the  tax  on  the  whole  amount;  but  if  it  be  not  in  money,  he  shall  make 
an  application  to  the  court  having  jurisdiction  of  his  accounts  to  make  an 
apportionment,  if  the  case  require  it,  of  the  sum  to  be  paid  into  his  hands 
by  such  legatee  on  account  of  said  tax  and  for  such  further  order  as  the 
case  may  require.  (Acts  of  1909,  p.  907.) 

§  410.    Valuation  and  Appraisement  of  Property. 

Sec.  11.  The  value  of  such  property  as  may  be  subject  to  said  tax  shall 
be  its  actual  value  as  found  by  the  court  of  probate,  after  notice  to  all 
persons  interested  in  the  succession  to  said  property  [shall  be]  served  for 
the  time  and  in  the  manner  required  by  law  in  proceedings  for  the  assign- 
ment of  dower.  But  the  state  treasurer,  or  any  person  interested  in  the 
succession  to  said  property,  may  apply  to  the  court  of  probate  having  juris- 
diction of  the  estate,  or  to  any  circuit  court  having  jurisdiction  in  case 
there  is  no  administration,  and  on  such  application  said  court  shall  appoint 
three  disinterested  persons  who,  being  first  sworn,  shall  view  and  appraise 
such  property  at  its  actual  market  value  for  the  purposes  of  said  tax,  and 
shall  make  return  thereof  to  the  court,  which  return  may  be  accepted  by 
the  said  court,  and  if  accepted  shall  be  binding.  And  the  fees  of  the  ap- 
praiser shall  be  such  as  are  customary  in  the  administration  of  estates. 
In  the  case  of  annuity  or  life  estate  the  value  thereof  shall  be  determined 
by  the  tables  of  mortality  employed  by  insurance  actuaries,  and  five  per 
centum  compound  interest.  (Acts  of  1909,  p.  908.) 


394  INHERITANCE  TAXATION. 

§  411.     Jurisdiction  of  Probate  Court. 

Sec.  12.  The  court  of  probate  having  either  principal  or  auxiliary  juris- 
diction of  the  settlement  of  the  estate  of  a  decedent  shall  have  jurisdiction 
to  hear  and  determine  all  questions  in  relation  to  said  tax  that  may  arise 
affecting  any  devise,  legacy  or  inheritance  under  this  act,  subject  to  appeal 
as  in  oth'er  cases,  and  the  state  treasurer,  through  the  attorney  general,  shall 
represent  the  interests  of  the  state  in  any  such  proceedings.  (Acts  of  1909, 
p.  909.) 

§  412.    Account  of  Executor  not  Settled  Until  Tax  Paid. 

Sec.  13.  No  final  settlement  of  the  account  of  any  executor,  administra- 
tor or  trustee  shall  be  confirmed  by  any  probate  court  unless  it  shall  show 
and  the  court  shall  find  that  all  taxes  imposed  by  the  provisions  of  this 
act  upon  any  property  or  interest  therein  belonging  to  the  estate  to  be 
settled  by  said  account  shall  have  been  paid,  and  the  receipt  of  the  treasurer 
of  the  state  for  such  tax  shall  be  the  proper  voucher  for  such  payment. 
(Acts  of  1909,  p.  909.) 

§  413.    Duty  of  Attorney  General — Appointment  and  Compensation  of  At- 
torneys. 

Sec.  14.  It  shall  be  the  duty  of  the  attorney  general  to  appear  for  or  in 
behalf  of  the  state  treasury,  and  institute  proceedings  in  the  proper  form 
for  the  enforcement  of  the  provisions  of  this  act,  whenever,  from  informa- 
tion by  the  state  treasurer,  or  from  any  probate  judge,  or  otherwise  ob- 
tained, he  shall  have  reason  to  believe  any  of  the  taxes  provided  for  herein 
have  become  past  due.  And  when  requested  in  writing  by  any  probate 
judge,  he  shall  assist  in  the  adjustment  and  collection  of  any  such  taxes 
which  shall  have  accrued  under  this  act,  and  whenever,  in  the  judgment  of 
the  attorney  general  it  becomes  necessary  and  expedient,  he  shall  have  the 
power  to  appoint  attorneys  to  assist  him  in  any  of  the  duties  herein  re- 
quired of  him,  and  the  compensation  of  such  attorneys  shall  be  two  per 
cent  of  all  amounts  actually  collected,  except  where  there  may  be  litigation 
over  past  due  taxes,  in  which  event  the  compensation  shall  be  five  per  cent 
of  all  amounts  actually  recovered,  said  compensation  to  be  deducted  from 
the  amount  of  taxes  so  collected.  Provided,  that  any  attorney  appointed 
hereunder  shall  be  a  resident  of  the  congressional  district  in  which  such 
action  for  the  collection  of  inheritance  tax  may  be  brought  or  in  which  the 
administration  of  any  estate  liable  therefor  may  be  pending.  (Acts  of  1909, 
p.  909.) 

§  414.    Repeal  of  Conflicting  Acts. 

Sec.  15.  That  all  laws  and  parts  of  laws  in  conflict  herewith  be  and  the 
same  are  hereby  repealed,  and  that  this  act  take  effect  and  be  in  force 
from  and  after  its  passage.  (Acts  of  1909,  p.  910,  approved  May  31,  1909.) 


CALIFORNIA    STATUTE.  395 

CHAPTER  XXIV. 
CALIFORNIA  STATUTE. 

(Statutes  of  1905,  pp.  S41,  S74;  Statutes  of  1909,  p.  557;  Statutes  of  1911, 

pp.  71S-7S7.) 

§  415.  Transfers  Subject  to  Tax — Lien — Persons   Liable — Market    Value — 

Power  of  Appointment. 

§  416.  Classification  of  Beneficiaries — Tax  Rates  on  Estates  Under  $25,000. 

§  417.  Bates  of  Taxation  on  Estates  Over  $25,000. 

§  418.  Exemptions  from  Taxation. 

§  419.  Estates  for  Years  or  Life — Remainders  and  Contingent  Interests. 

§  420.  Bequests  to  Executors  in  Lieu  of  Compensation. 

§  421.  Time  for  Payment  of  Tax — Interest  and  Discount. 

§  422.  Penalty  for  Nonpayment. 

§  423.  Collection  of  Tax  by  Executor  or  Trustee. 

§  424.  Sale  of  Property  to  Pay  Tax. 

§  425.  Payment  to  County  Treasurer — Duty  of  Controller — Receipts. 

§  426.  Refunding  Excess  Payments. 

§  427.  Transfer  or  Delivery  of  Stock,  Securities,  Deposits — Notice. 

§  428.  Appraisers  and  Appraisement. 

§  429.  Jurisdiction  of  Courts. 

§  430.  Citation  to  Delinquent  Taxpayers. 

§  431.  Actions  to  Enforce  Tax  and  Lien — Quieting  Title. 

§  432.  Notice  to  District  Attorney  that  Tax  is  Due — Special  Attorneys. 

§  433.  Costs  of  Proceedings  Against  Delinquents. 

§  434.  Payment  by  County  to  State  Treasurer. 

§  435.  Commissions  of  County  Treasurer. 

§  436.  Employment  of  Attorney  by  County  Treasurer. 

§  437.  Employment  of  Counsel  by  State  Auditor. 

§  438.  Disposition  of  Taxes  Collected. 

§  439.  Refusal  of  Officers  to  Discharge  Duties — Penalty  Therefor. 

§  440.  Definitions  of  Words  Used  in  Statutes. 

§  441.  Repeal  of  Prior  Statutes. 

§  415.  Transfers  Subject  to  Tax — Lien — Persons  Liable — Market  Value — 
Power  of  Appointment. 

Sec.  1.  A  tax  shall  be  and  is  hereby  imposed  upon  the  transfer  of  any 
property,  real,  personal  or  mixed,  or  of  any  interest  therein  or  income  there- 
from, in  trust  or  otherwise,  to  persons,  institutions  or  corporations,  not 
hereinafter  exempted,  to  be  paid  to  the  treasurer  of  the  proper  county,  as 
hereinafter  directed,  for  the  us,e  of  the  state,  in  the  following  cases: 

(1)  When  the  transfer  is  by  will  or  by  the  intestate  or  homestead  laws 
of  this  state,  from  any  person  dying  seised  or  possessed  of  the  property 
while  a  resident  of  the  state,  or  by  any  probate  homestead  set  apart  from 
said  property. 


396  INHERITANCE  TAXATION. 

(2)  When  the  transfer  is  by  will   or  intestate  laws  of  property  within 
the  state  and  the  decedent  was  a  nonresident  of  the  state  at  the  time  of 
his  death. 

(3)  When  the  transfer  is  of  property  made  by  a  resident,  or  by  a  non- 
resident when  such  nonresident's  property   is  within   this  state,  by   deed, 
grant,  bargain,  sale,  assignment  or  gift,  made  without  valuable  and  adequate 
consideration  in  contemplation  of  the  death  of  the  grantor,  vendor,  assignor 
or  donor,  or  intended  to  take  effect  in  possession  or  enjoyment  at  or  after 
such    death.     When    any    such    person,   institution    or    corporation    becomes 
beneficially   entitled    in    possession    or   expectancy   to   any   property  or  the 
income  therefrom,  by  any  such  transfer,  whether  made  before  or  after  the 
passage  of  this  act. 

(4)  Such  taxes  shall  be  and  remain  a  lien  upon  the  property  passed  or 
transferred  until  paid,  and  the  person  to  whom  the  property  passes  or  is 
transferred,  and  all  administrators,  executors,  and  trustees  of  every  estate 
so  transferred  or  passed,  shall  be  liable  for  any  and  all  such  taxes  until 
the  same  shall  have  been  paid  as  hereinafter  directed;  provided,  that  unless 
sued  for  within  five  years  after  they  are  due  and  legally  demandable,  such 
taxes  shall  cease  to  be  a  lien  as  against  any  bona  fide  purchaser  of  real 
property;  and  provided  that  no  such  lien  shall  cease  within  five  years  from 
the  date  of  the  passage  of  this  act.     The  tax  so  imposed  shall  be  upon  the 
market  value  of  such  property  at  the  rates  hereinafter  prescribed  and  only 
upon  the  excess  over  the  exemptions  hereinafter  granted. 

Whenever  any  person  or  corporation  shall  exercise  a  power  of  appoint- 
ment derived  from  any  disposition  of  property  made  either  before  or  after 
the  passage  of  this  act,  such  appointment  when  made  shall  be  deemed  a 
transfer  taxable  under  the  provisions  of  this  act  in  the  same  manner  as 
though  the  property  to  which  such  appointment  relates  belonged  absolutely 
to  the  donee  of  such  power  and  had  been  bequeathed  or  devised  by  such 
donee  by  will;  and  whenever  any  person  or  corporation  possessing  such  a 
power  of  appointment  so  derived  shall  omit  or  fail  to  exercise  the  same 
within  the  time  provided  therefor,  in  whole  or  in  part,  a  transfer  taxable 
under  the  provisions  of  this  act  shall  be  deemed  to  take  place  to  the  extent 
of  euch  omission  or  failure,  in  the  same  manner  as  though  the  persons  or 
corporations  thereby  becoming  entitled  to  the  possession  or  enjoyment  of 
the  property  to  which  such  power  related  had  succeeded  thereto  by  a  will 
of  the  donee  of  the  power  failing  to  exercise  such  power,  taking  effect  at  the 
time  of  such  omission  or  failure.  (Stats.  1905,  p.  341;  Stats.  1911,  p.  713.) 

§  416.  ,  Classification  of  Beneficiaries — Tax  Bates  on  Estates  Under  $25,000. 

Sec.  2.  When  the  property  or  any  beneficial  interest  therein  so  passed 
or  transferred  exceeds  in  value  the  exemption  hereinafter  specified  and 
shall  not  exceed  in  value  twenty-five  thousand  dollars  the  tax  hereby  im- 
posed shall  be: 

(1)  Where  the  person  or  persons  entitled  to  any  beneficial  interest  in 
such  property  shall  be  the  husband,  wife,  lineal  issue,  lineal  ancestor  of  the 
decedent  or  any  child  adopted  as  such  in  conformity  with  the  laws  of  this 
state,  or  any  child  to  whom  such  decedent  for  not  less  than  ten  years  prior 
to  such  transfer  stood  in  the  mutually  acknowledged  relation  of  a  parent, 


CALIFORNIA    STATUTE.  397 

provided,  however,  such  relationship  began  at  or  before  the  child's  fifteenth 
birthday,  and  was  continuous  for  said  ten  years  thereafter,  or  any  lineal 
issue  of  such  adopted  or  mutually  acknowledged  child,  at  the  rate  of  one 
per  centum  of  the  clear  value  of  such  interest  in  such  property. 

(2)  Where  the  person   or  persons   entitled  to  any  beneficial  interest  in 
such  property  shall  be  the  brother  or  sister  or  a  descendant  of  a  brother  or 
sister    of    the    decedent,  a    wife    or  widow  of  a  son,  or  the  husband  of  a 
daughter  of  the  decedent,  at  the  rate  of  two  per  centum  of  the  clear  value 
of  such  interest  in  such  property. 

(3)  Where  the  person   or  persons  entitled  to  any  beneficial  interest  in 
such  property  shall  be  the  brother  or  sister  of  the  father  or  mother  or  a 
descendant  of  a  brother  or  sister  of  the  father  or  mother  of  the  decedent, 
at  the  rate  of  three  per  centum  of  the  clear  value  of  such  interest  in  such 
property. 

(4)  Where  the  person  or  persons  entitled  to  any  beneficial  interests  in 
such  property  shall  be  the  brother  or  sister  of  the  grandfather  or  grand- 
mother  or   a    descendant   of  the  brother  or   sister   of   the   grandfather   or 
grandmother  of  the  decedent,  at  the  rate  of  four  per  centum  of  the  clear 
value  of  such  interest  in  such  property. 

(5)  Where  the  person  or  persons  entitled  to  any  beneficial  interest  in 
such  property  shall  be  in  any  other  degree  of  collateral  consanguinity  than 
is  hereinbefore  stated,  or  shall  be  a  stranger  in  blood  to  the  decedent,  or 
shall  be  a  body  politic  or  corporate,  at  the  rate  of  five  per  centum  of  the 
clear  value  of  such  interest  in  such  property.     (Stats.  1905,  p.  342;  Stats. 
1911,  p.  714.) 

§  417.    Rates  of  Taxation  on  Estates  Over  $25,000. 

Sec.  3.  The  foregoing  rates  in  section  two  are  for  convenience  termed 
the  primary  rates.  When  the  market  value  of  such  property  or  interest 
exceeds  twenty-five  thousand  dollars,  the  rates  of  tax  upon  such  excess 
shall  be  as  follows: 

(1)  Upon  all  in  excess  of  $25,000  and  up  to  $50,000,  two  times  the  primary 
rates. 

(2)  Upon  all  in  excess  of  $50,000  and  up  to  $100,000,  three  times  the 
primary  rates. 

(3)  Upon  all  in  excess  of  $100,000  and  up  to  $500,000,  four  times  the 
primary  rates. 

(4)  Upon  all  in  excess  of  $500,000,  five  times  the  primary  rates.     (Stats. 
1905,  p.  342;  Stats.  1911,  p.  714.) 

§  418.    Exemptions  from  Taxation. 

Sec.  4.  The  following  exemptions  from  the  tax  are  hereby  allowed: 
(1)  All  property  transferred  to  societies,  corporations,  and  institutions 
now  or  hereafter  exempted  by«  law  from  taxation,  or  to  any  public  corpora- 
tion, or  to  any  society,  corporation,  institution,  or  association  of  persons 
engaged  in  or  devoted  to  any  charitable,  benevolent,  educational,  public  or 
other  like  work  (pecuniary  profit  not  being  its  object  or  purpose),  or  to  any 
person,  society,  corporation,  institution,  or  association  of  persons  in  trust 


398  INHERITANCE  TAXATION. 

for  or  to  b«  devoted  to  any  charitable,  benevolent,  educational,  or  public 
purpose,  by  reason  whereof  any  such  person  or  corporation  shall  become 
beneficially  entitled,  in  possession  or  expectancy,  to  any  such  property  or 
to  the  income  thereof  shall  be  exempt. 

(2)  Property  of  the  clear  value  of  twenty-four  thousand  dollars  trans- 
ferred to  the  widow  or  to  a  minor  child  of  the  decedent,  and  of  ten  thousand 
dollars  transferred  to  each  of  the  other  persons  described  in  the  first  sub- 
division of  section  2  shall  be  exempt. 

(3)  Property  of  the  clear  value  of  two  thousand  dollars  transferred  to 
each  of  the  persons  described  in  the  second  subdivision  of  section  2  shall  be 
exempt. 

(4)  Property  of  the  clear  value  of  one  thousand  five  hundred  dollars  trans- 
ferred to  each  of  the  persons  described  in  the  third  subdivision  of  section  2 
shall  be  exempt. 

(5)  Property  of  the  clear  value  of  one  thousand  dollars  transferred  to 
each  of  the  persons  described  in  the  fourth  subdivision  of  section  2  shall  be 
exempt. 

(6)  Property  of  the  clear  value  of  five  hundred  dollars  transferred  to 
each  of  the  persons  and  corporations  described  in  the  fifth  subdivision  of 
section  2  shall  be  exempt.     (Stats.  1905,  p.  343;  Stats.  1911,  p.  715.) 

§  419.     Estates  for  Tears  or  Life — Remainders  and  Contingent  Interests. 

Sec.  5.  When  any  grant,  gift,  legacy,  devise  or  succession  upon  which  a 
tax  is  imposed  by  section  one  of  this  act  shall  be  an  estate,  income  or 
interest  for  a  term  of  years,  or  for  life,  or  determinable  upon  any  future 
or  contingent  event,  or  shall  be  a  remainder,  reversion  or  other  expectancy, 
real  or  personal,  the  entire  property  or  fund  by  which  such  estate,  income 
or  interest  is  supported,  or  of  which  it  is  a  part,  shall  be  appraised  immedi- 
ately after  the  death  of  the  decedent,  and  the  market  value  thereof  deter- 
mined, in  the  manner  provided  in  section  fifteen  of  this  act,  and  the  tax 
prescribed  by  this  act  shall  be  immediately  due  and  payable  to  the  treasurer 
of  the  proper  county,  and,  together  with  the  interest  thereon,  shall  be  and 
remain  a  lien  on  said  property  until  the  same  is  paid;  provided,  that  the 
person  or  persons,  or  body  politic  or  corporate,  beneficially  interested  in  the 
property  chargeable  with  said  tax,  may  elect  not  to  pay  the  same  until  they 
shall  come  into  the  actual  possession  or  enjoyment  of  such  property,  and  in 
that  case  such  person  or  persons,  or  body  politic  or  corporate,  shall  execute 
a  bond  to  the  people  of  the  state  of  California,  in  a  penalty  of  twice  the 
amount  of  the  tax  arising  upon  personal  estate,  with  such  sureties  as  the 
said  superior  court  may  approve,  conditioned  for  the  payment  of  said  tax, 
and  interest  thereon,  at  such  time  or  period  aa  they  or  their  representatives 
may  come  into  the  actual  possession  or  enjoyment  of  such  property,  which 
bond  shall  be  filed  in  the  office  of  the  county  clerk  of  the  proper  county 
and  a  certified  copy  thereof  shall  be  immediately  transmitted  to  the  state 
controller;  provided  further,  that  such  person  shall  make  a  full  and  verified 
return  of  such  property  to  said  court,  and  file  the  same  in  the  office  of  the 
county  clerk  within  one  year  from  the  death  of  the  decedent,  and  within 
that  period  enter  into  such  security,  and  renew  the  same  every  five  years. 
(Stats.  1905,  p.  343;  Stats.  1911,  p.  716.) 


CALIFORNIA    STATUTE.  399 

§  420.    Bequests  to  Executor  in  Lieu  of  Compensation. 

Sec.  6.  Whenever  a  decedent  appoints  or  names  one  or  more  executors  or 
trustees,  and  makes  a  bequest  or  devise  of  property  to  them  in  lieu  of 
commissions  or  allowances,  which  otherwise  would  be  liable  to  said  tax,  or 
appoints  them  his  residuary  legatees,  and  said  bequest,  devises,  or  residuary 
legacies  exceed  what  would  be  a  reasonable  compensation  for  their  services, 
such  excess  over  and  above  the  exemptions  herein  provided  for  shall  be 
liable  to  said  tax;  and  the  superior  court  in  which  the  probate  proceedings 
are  pending  shall  fix  the  compensation.  (Stats.  1905,  p.  343;  Stats.  1911, 
p.  716.) 

§  421.     Time  for  Payment  of  Tax — Interest  and  Discount. 

Sec.  7.  All  taxes  imposed  by  this  act,  unless  otherwise  herein  provided 
for,  shall  be  due  and  payable  at  the  death  of  the  decedent,  and  if  the  same 
are  paid  within  eighteen  months  no  interest  shall  be  charged  and  collected 
thereon,  but  if  not  so  paid,  interest  at  the  rate  of  ten  per  centum  per  annum 
shall  be  charged  and  collected  from  the  time  said  tax  accrued;  provided, 
that  if  said  tax  is  paid  within  six  months  from  the  accruing  thereof  a  dis- 
count of  five  per  centum  shall  be  allowed  and  deducted  from  said  tax.  And 
in  all  cases  where  the  executors,  administrators,  or  trustees  do  not  pay  such 
tax  within  eighteen  months  from  the  death  of  the  decedent,  they  shall  be 
required  to  give  a  bond  in  the  form  and  to  the  effect  prescribed  in  section 
five  of  this  act  for  the  payment  of  said  tax,  together  with  interest.  (Stats. 
1905,  p.  344;  Stats.  1911,  p.  716.) 

§  422.    Penalty  for  Nonpayment. 

Sec.  8.  The  penalty  of  ten  per  cent  per  annum  imposed  by  section  seven 
hereof,  for  the  nonpayment  of  said  tax,  shall  not  be  charged  in  cases  where, 
in  the  judgment  of  the  court,  by  reason  of  claims  made  upon  the  estate, 
necessary  litigation,  or  other  unavoidable  cause  of  delay,  the  estate  of  any 
decedent,  or  a  part  thereof,  cannot  be  settled  at  the  end  of  eighteen  months 
from  the  death  of  the  decedent;  and  in  such  cases  seven  per  cent  per  annum 
shall  be  charged  upon  the  said  tax  from  the  expiration  of  said  eighteen 
months  until  the  cause  of  such  delay  is  removed,  after  which  ten  per  cent 
interest  per  annum  shall  again  be  charged  until  the  tax  is  paid;  but  litiga- 
tion to  defeat  the  payment  of  the  tax  shall  not  be  considered  necessary 
litigation.  (Stats.  1905,  p.  344;  Stats.  1911,  p.  717.) 

§  423.     Collection  of  Tax  by  Executor  or  Trustee. 

Sec.  9.  Any  administrator,  executor,  or  trustee  having  in  charge  or  trust 
any  legacy  or  property  for  distribution,  subject  to  the  said  tax,  shall  deduct 
the  tax  therefrom,  or  if  the  legacy  or  property  b«  not  money  he  shall  collect 
the  tax  thereon,  upon  the  mafket  value  thereof,  from  the  legatee  or  person 
entitled  to  such  property,  and  he  shall  not  deliver,  or  be  compelled  to  deliver, 
any  specific  legacy  or  property  subject  to  tax  to  any  person  until  he  shall 
have  collected  the  tax  thereon;  and  whenever  any  such  legacy  shall  be 
charged  upon  or  payable  out  of  real  estate,  the  executor,  administrator,  or 
trustee  shall  collect  said  tax  from  the  distributee  thereof,  and  the  same  shall 


400  INHERITANCE  TAXATION. 

remain  a  charge  on  such  real  estate  until  paid;  if,  however,  such  legacy  b» 
given  in  money  to  any  person  for  a  limited  period,  the  executor,  adminis- 
trator, or  trustee  shall  retain  the  tax  upon  the  whole  amount;  but  if  it  be 
not  in  money  he  shall  make  application  to  the  superior  court  to  make  an 
apportionment,  if  the  case  require  it,  of  the  sum  to  be  paid  into  his  hands 
by  such  legatees,  and  for  such  further  order  relative  thereto  as  the  case  may 
require.  (Stats.  1905,  p.  345;  Stats.  1911,  p.  717.) 

§  424.    Sale  of  Property  to  Pay  Tax. 

Sec.  10.  All  executors,  administrators,  and  trustees  shall  have  full  power 
to  sell  so  much  of  the  property  of  the  decedent  as  will  enable  them  to  pay 
said  tax,  in  the  same  manner  as  they  may  be  enabled  by  law  to  do  for  the 
payment  of  debts  of  the  estate,  and  the  amount  of  said  tax  shall  be  paid 
as  hereinafter  directed.  (Stats.  1905,  p.  345;  Stats.  1911,  p.  717.) 

§  425.    Payment  to  County  Treasurer — Duty  of  Controller — Receipts. 

Sec.  11.  Every  sum  of  money  retained  by  an  executor,  administrator,  or 
trustee,  or  paid  into  his  hands,  for  any  tax  on  property,  shall  be  paid  by 
him,  within  thirty  days  thereafter,  to  the  treasurer  of  the  county  in  which 
the  probate  proceedings  are  pending.  Upon  the  payment  to  any  county 
treasurer  of  any  tax  due  under  this  act,  such  treasurer  shall  issue  a  receipt 
therefor  in  triplicate,  one  copy  of  which  he  shall  deliver  to  the  person  paying 
said  tax,  and  the  original  and  one  copy  thereof  he  shall  immediately  send 
to  the  controller  of  the  state,  whose  duty  it  shall  be  to  charge  the  treasurer 
so  receiving  the  tax  with  the  amount  thereof,  and  said  controller  shall  retain 
one  of  said  receipts  and  the  other  he  shall  countersign  and  seal  with  the 
seal  of  his  office,  and  immediately  transmit  to  the  clerk  of  the  court  fixing 
such  tax.  And  an  executor,  administrator,  or  trustee  shall  not  be  entitled  to 
credits  in  his  accounts,  nor  be  discharged  from  liability  for  such  tax,  nor 
shall  said  estate  be  distributed,  unless  a  receipt  so  sealed  and  countersigned 
by  the  controller,  or  a  copy  thereof,  certified  by  him,  shall  have  been  filed 
with  the  court. 

Any  person  shall,  upon  payment  to  the  county  treasurer  of  the  sum  of 
fifty  cents,  be  entitled  to  a  duplicate,  or  copy,  of  any  receipt  that  may  have 
been  given  by  said  treasurer  for  the  payment  of  any  tax  under  this  act. 
(Stats.  1905,  p.  345;  Stats.  1911,  pp.  717,  718.) 

§  426.    Refunding  Excess  Payments. 

Sec.  12.  Whenever  any  debts  shall  be  proven  against  the  estate  of  a 
decedent  after  the  payment  of  legacies  or  distribution  of  property  from 
which  the  said  tax  has  been  deducted  or  upon  which  it  has  been  paid,  and 
a  refund  is  made  by  the  legatee,  devisee,  heir,  or  next  of  kin,  a  proportion 
of  the  tax  so  deducted  or  paid  shall  be  repaid  to  him  by  the  executor,  ad- 
ministrator, or  trustee,  if  the  said  tax  has  not  been  paid  to  the  county  treas- 
urer or  to  the  state  treasurer,  or  by  said  county  treasurer,  or  said  state 
'treasurer  (on  warrant  of  the  state  controller)  if  it  has  been  so  paid,  (Stats. 
1905,  p.  345;  Stats.  1911,  p.  718.) 


CALIFORNIA    STATUTE.  401 

§  427.    Transfer  or  Delivery  of  Stocks,  Securities,  Deposits — Notice. 

Sec.  13.  If  a  foreign  executor,  administrator,  or  trustee  shall  assign  or 
transfer  any  stock  or  obligations  in  this  state  standing  in  the  name  of  a 
decedent,  or  in  trust  for  a  decedent,  liable  to  any  such  tax,  the  tax  shall 
be  paid  to  the  treasurer  of  the  proper  county  on  the  transfer  thereof.  No 
safe  deposit  company,  trust  company,  corporation,  bank  or  other  institution, 
person  or  persons  having  in  possession  or  under  control  securities,  deposits, 
or  other  assets  belonging  to  or  standing  in  the  name  of  a  decedent  who  was 
a  resident  or  nonresident,  or  belonging  to,  or  standing  in  the  joint  names 
of  such  a  decedent  and  one  or  more  persons,  including  the  shares  of  the 
capital  stock  of,  or  other  interests  in,  the  safe  deposit  company,  trust  com- 
pany, corporation,  bank  or  other  institution  making  the  delivery  or  transfer 
herein  provided,  shall  deliver  or  transfer  the  same  to  the  executors,  adminis- 
trators or  legal  representatives  of  said  decedent,  or  to  the  survivor  or  sur- 
vivors when  held  in  the  joint  name  of  a  decedent  and  one  or  more  persons, 
or  upon  their  order  or  request,  unless  notice  of  the  time  and  place  of  such 
intended  delivery  or  transfer  be  served  upon  the  state  controller  and  county 
treasurer  at  least  ten  days  prior  to  said  delivery  or  transfer;  nor  shall  any 
such  safe  deposit  company,  trust  company,  corporation,  bank  or  other 
institution,  person  or  persons  deliver  or  transfer  any  securities,  deposits  or 
other  assets  belonging  to  or  standing  in  the  name  of  a  decedent,  or  belonging 
to,  or  standing  in  the  joint  names  of  a  decedent  and  one  or  more  persons, 
including  the  shares  of  the  capital  stock  of,  or  other  interests  in,  the  safe 
deposit  company,  trust  company,  corporation,  bank  or  other  institution 
making  the  delivery  or  transfer,  without  retaining  a  sufficient  portion  or 
amount  thereof  to  pay  any  tax  and  interest  which  may  thereafter  be  as- 
sessed on  account  of  the  delivery  or  transfer  of  such  securities,  deposits  or 
other  assets,  including  the  shares  of  the  capital  stock  of,  or  other  interests 
in,  the  safe  deposit  company,  trust  company,  corporation,  bank  or  other 
institution  making  the  delivery  or  transfer,  under  the  provisions  of  this  act, 
unless  the  state  controller,  or  person  by  him  in  writing  authorized  so  to  do, 
consents  thereto  in  writing.  And  it  shall  be  lawful  for  the  state  controller 
or  the  county  treasurer,  personally  or  by  representatives,  to  examine  said 
securities,  deposits  or  assets  at  the  time  of  such  delivery  or  transfer.  Failure 
to  serve  such  notice  or  failure  to  allow  such  examination,  or  failure  to 
retain  a  sufficient  portion  or  amount  to  pay  such  tax  and  interest  as  herein 
provided,  or  violation  of  the  provisions  of  this  section,  shall  render  said  safe 
deposit  company,  trust  company,  corporation,  bank  or  other  institution, 
person  or  persons  liable  to  the  payment  of  the  amount  of  the  tax  and  inter- 
est due  or  thereafter  to  become  due  upon  said  securities,  deposits  or  other 
assets,  including  the  shares  of  the  capital  stock  of,  or  other  interests  in, 
the  safe  deposit  company,  trust  company,  corporation,  bank  or  .other  insti- 
tution making  the  delivery  or  transfer,  and  in  addition  thereto,  a  penalty 
of  not  less  than  one  thousand' nor  more  than  twenty  thousand  dollars;  and 
the  payment  of  such  tax  and  interest  thereon,  or  of  the  penalty  above  pre- 
scribed, or  both,  may  be  enforced  in  an  action  brought  by  the  state 
controller  or  county  treasurer  in  any  court  of  competent  jurisdiction. 
(Stats.  1905,  p.  346;  Stats.  1911,  p.  718.) 
28 


402  INHERITANCE  TAXATION. 

§  428.    Appraisers  and  Appraisement. 

Sec.  14.  The  state  controller  shall  appoint,  and  may  at  his  pleasure 
remove,  one  or  more  persons  in  each  county  of  the  state  to  act  as  inheritance 
tax  appraisers  therein.  Every  such  inheritance  tax  appraiser  (in  addition 
to  any  fees  paid  him  as  appraiser  under  section  1444  of  the  Code  of  Civil 
Procedure)  shall  be  paid  by  th«  county  treasurer,  out  of  any  funds  that 
he  may  have  in  his  hands  on  account  of  said  tax,  on  presentation  of  a  sworn 
itemized  account  and  on  the  certificate  of  the  superior  court,  at  the  rate 
of  five  dollars  per  day  for  every  day  actually  and  necessarily  employed  in 
said  inheritance  tax  appraisement,  together  with  his  actual  and  necessary 
traveling  and  other  incidental  expenses,  and  the  fees  paid  such  witnesses 
as  he  shall  subpoena  before  him,  which  fees  shall  be  the  same  as  those  now 
paid  to  witnesses  subpoenaed  to  attend  in  courts  of  record.  Any  such 
appraiser  who  shall  take  any  fee  or  reward,  other  than  such  as  may  be 
allowed  him  by  law,  from  any  executor,  administrator,  trustee,  legatee,  next 
tf  kin,  or  heir  of  any  decedent,  or  from  any  other  person  liable  to  pay  said 
tax,  or  any  portion  thereof,  shall  be  guilty  of  a  misdemeanor,  and  upon 
conviction  thereof  shall  be  fined  not  less  than  two  hundred  and  fifty  dollars 
nor  more  than  five  hundred  dollars,  or  be  imprisoned  in  the  county  jail 
ninety  days,  or  both,  and  in  addition  thereto  th«  court  shall  dismiss  him 
from  such  service.  (Stats.  1905,  p.  347;  Stats.  1911,  p.  719.) 

Sec.  15.  (1)  The  superior  court  having  jurisdiction  to  determine  any 
such  tax,  either  upon  its  own  motion  or  upon  the  application  of  any  inter- 
ested person,  including  the  state  controller  or  county  treasurer,  shall  by 
order  direct  the  person,  or  one  of  th«  persons,  appointed  pursuant  to  section 
14  of  this  act  to  fix  the  clear  market  value  of  property  of  persons  whose 
estates  shall  be  subject  to  the  payment  of  any  tax  under  this  act.  Every 
such  appraiser  shall  forthwith  give  notice  by  mail  to  all  persons  known  to 
have  a  claim  or  interest  in  the  property  to  be  appraised,  including  the  state 
controller  and  the  treasurer  of  the  county  in  which  such  tax  is  to  be  paid, 
and  to  such  person  or  persons  as  the  superior  court  may  by  order  direct,  of 
the  time  and  place  when  he  will  hear  all  persons  interested  in  the  appraise- 
ment of  such  estate.  He  shall  thereupon  appraise  the  said  property  at  its 
fair  market  value  as  herein  prescribed;  and  for  the  purpose  of  making  said 
appraisement  the  said  appraiser  is  hereby  authorized  to  issue  subpoenas 
and  compel  the  attendance  of  witnesses  before  him,  to  administer  oaths,  and 
to  take  the  evidence  of  such  witnesses  under  oath  concerning  such  prop- 
erty and  the  value  thereof;  and  he  shall  make  report  thereof  and  of  such  value 
in  writing  to  the  said  superior  court,  together  with  the  depositions  of  the 
witnesses  examined,  and  such  other  facts  in  relation  thereto  as  said  superior 
court  may  order  or  require;  and  the  value  of  every  future  or  contingent 
or  limited  estate,  income,  or  interest  shall,  for  the  purposes  of  this  act, 
be  determined  by  the  rule,  method,  and  standards  of  mortality  and  of 
value  that  are  set  forth  in  the  actuaries'  combined  experience  tables  of 
mortality  for  ascertaining  the  value  of  policies  of  life  insurance  and  annui- 
ties, and  for  the  determination  of  the  liabilities  of  life  insurance  companies, 
save  that  the  rate  of  interest  to  be  assessed  in  computing  the  present  value 
of  all  future  interests  and  contingencies  shall  be  five  per  centum  per  annum. 


CALIFORNIA    STATUTE.  403 

The  insurance  commissioner  shall,  on  the  application  of  any  superior  court, 
determine  the  value  of  any  future  or  contingent  estates,  income  or  interest 
therein  limited,  contingent,  dependent  or  determinabl*  upon  the  life  or  lives 
of  persons  in  being,  upon  the  facts  contained  in  any  such  appraiser's  report, 
or  other  facts  to  him  submitted  by  said  court,  and  certify  the  same  to  the 
superior  court,  and  his  certificate  shall  be  conclusive  evidence  that  the 
method  of  computation  adopted  therein  is  correct. 

In  estimating  the  value  of  any  estate  or  interest  in  property,  to  the 
beneficial  enjoyment  or  possession  whereof  there  are  persons  or  corporations 
presently  entitled  thereto,  no  allowance  shall  be  made  on  account  of  any 
contingent  encumbrance  thereon,  nor  on  account  of  any  contingency  upon 
the  happening  of  which  the  estate  or  property  or  some  part  thereof  or 
interest  therein  might  be  abridged,  defeated  or  diminished;  provided,  how- 
ever, that  in  the  event  of  such  encumbrance  taking  effect  as  an  actual 
burden  upon  the  interest  of  the  beneficiary,  or  in  the  event  of  the  abridg- 
ment, defeat  or  diminution  of  said  estate  or  property  or  interest  therein  as 
aforesaid,  a  return  shall  be  made  to  the  person  properly  entitled  thereto  of 
a  proportionate  amount  of  such  tax  on  account  of  the  encumbrance  when 
taking  effect,  or  so  much  as  will  reduce  the  same  to  the  amount  which 
would  have  been  assessed  on  account  of  the  actual  duration  or  extent  of 
the  estate  or  interest  enjoyed.  Such  return  of  tax  shall  be  made  in  the- 
manner  provided  by  section  twelve  thereof  upon  order  of  the  court  having 
jurisdiction. 

Where  any  property  shall  after  the  passage  of  this  act,  be  transferred 
subject  to  any  charge,  estate  or  interest,  determinable  by  the  death  of  any 
person,  or  at  any  period  ascertainable  only  by  reference  to  death,  the  increase 
accruing  to  any  person  or  corporation  upon  the  extinction  or  determination 
of  such  charge,  estate  or  interest,  shall  be  deemed  a  transfer  of  property 
taxable  under  the  provisions  of  this  act  in  the  same  manner  as  though  the 
person  or  corporation  beneficially  entitled  thereto  had  then  acquired  such 
increase  from  the  person  from  whom  the  title  to  their  respective  estates  or 
interests  is  derived. 

When  property  is  transferred  in  trust  or  otherwise,  and  the  rights,  inter- 
est or  estates  of  the  transferees  are  dependent  upon  contingencies  or  condi- 
tions whereby  they  may  be  wholly  or  in  part  created,  defeated,  extended  or 
abridged,  a  tax  shall  be  imposed  upon  said  transfer  at  the  highest  rate 
which,  on  the  happening  of  any  of  the  said  contingencies  or  conditions, 
would  be  possible  under  the  provisions  of  this  act,  and  such  tax  so  imposed 
shall  be  due  and  payable  forthwith  by  the  executors  or  trustees  out  of 
the  property  transferred;  provided,  however,  that  on  the  happening  of  any 
contingency  whereby  the  said  property,  or  any  part  thereof,  is  transferred 
to  a  person  or  corporation  exempt  from  taxation  under  the  provisions  of 
this  act,  or  to  any  person  taxable  at  a  rate  less  than  the  rate  imposed  and 
paid,  such  person  or  corporation  shall  be  .entitled  to  a  return  of  so  much 
of  the  tax  imposed  and  paid  as  is  the  difference  between  the  amount  paid 
and  the  amount  which  said  person  or  corporation  should  pay  under  the 
provisions  of  this  act.  Such  return  of  overpayment  shall  be  made  in  the 
manner  provided  by  section  twelve  of  this  act,  upon  order  of  the  court 
having  jurisdiction. 


404  INHERITANCE  TAXATION. 

Estates  in  expectancy  which  are  contingent  or  defeasible  and  in  which 
proceedings  for  the  determination  of  the  tax  have  not  been  taken  or  where 
the  taxation  thereof  has  been  held  in  abeyance,  shall  be  appraised  at  their 
full,  undiminished  value  when  the  persons  entitled  thereto  shall  come  into 
the  beneficial  enjoyment  or  possession  thereof,  without  diminution  for  or 
on  account  of  any  valuation  theretofore  made  of  the  particular  estates  for 
purposes  of  taxation,  upon  which  said  estates  in  expectancy  may  have  been 
limited. 

Where  an  estate  for  life  or  for  years  can  be  devested  by  the  act  or  omis- 
sion of  the  legatee  or  devisee  it  shall  be  taxed  as  if  there  were  no  possibil- 
ity of  such  devesting. 

The  report  of  the  appraiser  shall  be  made  in  duplicate,  one  of  which  dupli- 
cates shall  be  filed  with  the  clerk  of  said  court  and  the  other  in  the  office 
of  the  state  controller. 

(2)  From  such  report  of  appraisal  and  other  proof  relating  to  any  such 
estate,  or  property,  before  the  superior  court,  said  court  shall,  by  order, 
forthwith  assess  and  fix  the  market  value  of  such  property  and  the  amount 
of  tax  to  which  the  same  is  liable,  and  the  clerk  of  said  court  shall  imme- 
diately give  notice  thereof  by  mail  to  the  county  treasurer  and  the  state 
controller  and  to  all  interested  persons  who  shall  have  furnished  said  clerk 
with  their  names  and  addresses  for  the  purpose  of  receiving  such  notice. 

But  said  superior  court  may  determine  such  tax  or  taxes  without  appoint- 
ing an  inheritance  tax  appraiser;  provided,  that  in  such  determination,  said 
court  shall  first  fix  a  day  upon  which  it  will  hear  all  parties  interested  in 
said  property  and  in  said  tax,  and  said  court  shall  order  the  clerk  thereof 
to  give  notice  of  said  hearing  for  such  time,  not  less  than  ten  days,  and  in 
such  manner  as  said  court  shall  direct,  and  said  clerk  shall  at  least  ten 
days  before  said  hearing  mail  a  copy  of  such  notice  to  the  county  treasurer 
and  a  copy  to  the  state  controller.  (Stats.  1905,  p.  347;  Stats.  1911,  p.  720.) 

§  429.    Jurisdiction  of  Courts. 

Sec.  16.  The  superior  court  in  the  county  in  which  is  situate  the  real 
property  of  a  decedent  who  was  not  a  resident  of  the  state,  or  if  there  be 
no  real  property,  then  in  the  county  in  which  any  of  the  personal  property 
of  such  nonresident  is  situate,  or  in  the  county  of  which  the  decedent  was 
a  resident  at  the  time  of  his  death,  shall  have  jurisdiction  to  hear  and 
determine  all  questions  in  relation  to  the  tax  arising  under  the  provisions  of 
this  act,  and  the  court  first  acquiring  jurisdiction  hereunder  shall  retain 
the  same,  to  the  exclusion  of  every  other.  (Stats.  1905,  p.  347;  Stats.  1911, 
p.  722.) 

§  430.     Citation  to  Delinquent  Taxpayers. 

Sec.  17.  If  it  shall  appear  to  the  superior  court  upon  petition  of  the 
state  controller  or  the  county  treasurer  or  any  other  interested  person  that 
any  transfer  has  been  made  within  the  meaning  of  this  act  and  the  taxabil- 
ity thereof  and  the  liability  for  such  tax  and  the  amount  thereof  have  not 
been  determined,  and  that  no  proceedings  are  pending  in  any  court  in  this 
state  wherein  the  taxability  of  such  transfer,  the  liability  therefor  and  the 


CALIFORNIA    STATUTE.  405 

amount  thereof  may  be  determined,  said  court  shall  issue  a  citation,  citing 
the  persons  who  may  appear  liable  therefor,  or  known  to  own  any  interest 
in  or  part  of  the  property  transferred,  to  appear  before  the  court  on  a  day 
certain,  not  more  than  ten  weeks  from  the  date  of  such  citation,  and  show 
cause  why  said  tax  should  not  be  determined  and  paid.  The  service  of  such 
citation,  and  the  time,  manner,  and  proof  thereof,  and  the  hearing  and 
determination  thereon,  and  the  enforcement  of  the  determination  or  decree, 
shall  conform  to  the  provisions  of  chapter  XII  of  title  XI  of  part  three  of 
the  Code  of  Civil  Procedure;  and  the  clerk  of  the  court  shall,  upon  the 
request  of  the  state  controller  or  the  treasurer  of  the  county,  furnish,  with- 
out fee,  one  or  more  transcripts  of  such  decree,  and  the  same  shall  be 
docketed  and  filed  by  the  county  clerk  of  any  county  in  the  state,  without 
fee,  in  the  same  manner  and  with  the  same  effect  as  provided  by  section 
six  hundred  and  seventy-four  of  said  Code  of  Civil  Procedure  for  filing  a 
transcript  of  an  original  docket.  The  superior  court  may  hear  the  said 
cause  upon  the  relation  of  the  parties  and  the  testimony  of  witnesses,  and 
evidence  produced  in  open  court,  arid,  if  the  court  shall  find  said  property 
is  not  subject  to  any  tax,  as  herein  provided,  the  court  shall,  by  order,  so 
determine;  but  if  it  shall  appear  that  said  property,  or  any  part  thereof, 
is  subject  to  any  such  tax,  the  same  shall  be  appraised  and  taxed  as  in  other 
cases.  (Stats.  1905,  p.  348;  Stats.  1911,  p.  722.) 

§  431.     Actions  to  Enforce  Tax  and  Lien — Quieting  Title. 

Sec.  18.  If,  after  the  expiration  of  eighteen  months  from  the  accrual  of 
any  tax  under  this  article,  such  tax  shall  remain  due  and  unpaid,  after  the 
refusal  or  neglect  of  the  persons  liable  therefor  to  pay  the  same,  the  county 
treasurer  shall  notify,  or  the  state  controller  may  notify,  the  district  attor- 
ney of  the  county  in  writing  of  such  failure  or  neglect,  and  such  district 
attorney  shall  bring  and  prosecute  an  action  or  actions  in  the  name  of  the 
state  as  plaintiff,  for  the  recovery  of  such  tax  and  for  the  purpose  of 
enforcing  any  lien  or  liens  against  all  or  any  of  the  property  subject  thereto. 
In  any  such  action  the  owner  of  any  property  or  of  any  interest  in  property 
against  which  the  lien  of  any  such  tax  is  sought  to  be  enforced,  and  any 
predecessor  in  interest  of  any  such  owner  whose  title  or  interest  was  de- 
raigned  through  any  such  decedent  by  will  or  succession  or  by  decree  of 
distribution  of  the  estate  of  such  decedent,  and  any  lienor,  or  encumbrancer 
subsequent  to  the  lien,  of  such  tax  may  be  made  a  party  defendant.  The 
enumeration  in  this  section  of  the  persons  who  may  be  made  defendants 
shall  not  be  deemed  to  be  exclusive,  but  the  joinder  or  nonjoinder  of  parties, 
except  when  otherwise  herein  provided,  shall  be  governed  by  the  rules  i» 
equity  in  similar  cases. 

(a)  Actions  may  be  brought  against  the  state  for  the  purpose  of  quieting 
the  title  to  any  property,  against  the  lien  or  claim  of  lien  of  any  tax  or 
taxes  under  this  act,  or  for  the  purpose  of  having  it  determined  that  any 
property  is  not  subject  to  any  lien  for  taxes  under  this  act.  In  any  such 
action,  the  plaintiffs  may  be  any  administrator  or  executor  of  the  estate  or 
will  of  any  decedent,  whether  the  said  estate  shall  have  been  fully  admin- 
istered and  the  estate  settled  and  closed  or  not,  and  any  heir,  legatee  or 


406  INHERITANCE  TAXATION. 

devisee  of  any  such  decedent,  or  trustee  of  the  estate  or  of  any  part  of  the 
estate  of  such  decedent,  or  distributee  of  the  estate  or  of  any  part  of  the 
estate  of  any  such  decedent,  and  any  assignee,  grantee  or  successor  in 
interest  of  any  of  such  persons,  and  all  or  any  other  persons  who  might  be 
made  parties  defendant  in  any  action  brought  by  the  state  under  the  pro- 
visions of  this  section,  and  notwithstanding  that  all  or  any  of  the  persons 
enumerated  in  this  section  shall  or  may  have  assigned,  granted,  conveyed 
or  otherwise  parted  with  all  or  any  interest  in  or  title  to  the  property, 
or  any  thereof,  involved  in  any  such  claim  of  lien  before  the  commence- 
ment of  such  action.  All  or  any  of  the  persons  in  this  action  enumerated 
may  be  joined  or  united  as  parties  plaintiff.  The  enumeration  in  this  section 
of  the  persons  who  may  be  made  parties  shall  not  be  deemed  to  be  exclusive, 
but  the  joinder  or  nonjoinder  of  parties,  except  when  otherwise  herein  pro- 
vided, shall  be  governed  by  the  rules  in  equity  in  similar  cases.  In  all 
cases  any  person  who  might  properly  be  a  party  plaintiff  in  any  such  action 
who  refuses  to  join  as  plaintiff  may  be  made  a  defendant. 

(b)  All  actions  under  this  section    shall    be    commenced  in  the  superior 
court  of  the  county  in  which  is  situated  any  part  of  any  real  property 
against  which  any  lien  is  sought  to  be  enforced,  or  to  which  title  is  sought 
to  be  quieted  against  any  lien,  or  claim  of  lien;  but  if  in  said  action  no 
lien   against   real  property  is  sought  to  be   enforced,  the   action   shall  be 
brought  in  the  superior  court  of  the  county  which  has  or  which  had  juris- 
diction of  the  administration  of  the  estate  of  the  decedent  mentioned  herein. 

(c)  Service  of  summons  in  the  actions  brought  against  the  state  shall  be 
made  on  the  controller  of  state  and  on  the  district  attorney  of  the  county 
in  which  the  estate  of  the  decedent  mentioned  herein  is  being  administered, 
or  has  been  administered  in  probate  proceedings,  and  it  shall  be  the  duty 
of  said  district  attorney  to  defend  all  such  actions. 

(d)  The  procedure  and  practice  in  all  actions  brought  under  this  section, 
except  as  otherwise  provided  in  this  act,  shall  be  governed  by  the  provisions 
of  the  Code  of  Civil  Procedure  in  relation  to  civil  actions,  so  far  as  the 
same  shall  or  may  be  applicable,  including  all  provisions  relating  to  motions 
for  new  trials  and  appeals. 

(e)  The  remedies  provided  in  this  section  shall  be  in  addition  to  and  not 
exclusive  of  any  remedies  provided  in  the  sections  preceding  this  section. 
(Stats.  1905,  p,  348;  Stats.  1911,  p.  723.) 

§  432.    Notice  to  District  Attorney  That  Tax  is  Due— Special  Attorneys. 

Sec.  19.  Whenever  the  treasurer  of  any  county  shall  have  reason  to  be- 
lieve that  any  transfer  has  been  made  within  the  meaning  of  this  act  and 
that  a  tax  due  thereon  remains  undetermined  and  unpaid,  he  shall  notify 
the  district  attorney  in  writing  of  such  transfer,  and  the  district  attorney, 
if  he  have  probable  cause  to  believe  a  tax  is  due,  and  remains  undetermined, 
shall  prosecute  the  necessary  proceedings  in  the  superior  court  to  determine 
and  fix  such  tax  and  for  the  enforcement  and  collection  thereof. 

The  county  treasurer  in  his  discretion,  for  the  better  furtherance  of  the 
purposes  of  this  act,  shall  be  allowed  to  employ  such  special  attorney  or 
attorneys  as  he  may  deem  necessary;  provided  that  such  attorney  shall  be 


CALIFORNIA    STATUTE.  407 

paid  for  his  services  out  of  the  fees  allowed  such  treasurer,  as  provided  in 
section  twenty-two  of  this  act.     (Stats.  1905,  p.  348;  Stats.  1911,  p.  724.) 

§  433.     Costs  of  Proceedings  Against  Delinquent. 

Sec.  20.  Whenever  the  superior  court  of  any  county  shall  certify  that 
there  was  probable  cause  for  issuing  a  citation  and  taking  the  proceedings 
specified  in  section  seventeen  or  eighteen  of  this  act  or  for  taking  any 
proceeding  or  action  to  determine  the  taxability  of  any  transfer  within  the 
meaning  of  this  act,  or  to  secure  a  fair  appraisement  of  any  property  taxable 
under  this  act,  or  for  taking  any  appeal  from  any  order  or  judgment  fixing 
such  tax  or  determining  the  taxability  of  any  transfer  within  the  meaning 
of  this  act,  the  state  treasurer  shall  pay,  or  allow,  to  the  treasurer  of  any 
county,  all  expenses  incurred  therefor,  and  for  his  other  lawful  disbursements 
that  have  not  otherwise  been  paid.  (Stats.  1905,  p.  349;  Stats.  1911,  p. 
724.) 

§  434.    Payment  by  County  to  State  Treasurer. 

Sec.  21.  The  treasurer  of  each  county  shall  collect  and  pay  the  state 
treasurer  all  taxes  that  may  be  due  and  payable  under  this  act,  who  shall 
give  him  a  receipt  therefor;  of  which  collection  and  payment  he  shall  make 
a  report,  under  oath,  to  the  controller,  between  the  first  and  fifteenth  days 
of  May  and  December  of  each  year,  stating  for  what  estate  paid,  and  in 
such  form  and  containing  such  particulars  as  the  controller  may  prescribe; 
and  for  all  such  taxes  collected  by  him  and  not  paid  to  the  state  treasurer 
by  the  first  day  of  June  and  January  of  each  year  he  shall  pay  interest  at 
the  rate  of  ten  per  centum  per  annum.  (Stats.  1905,  p.  349;  Stats.  1911, 
p.  725.) 

§  435.    Commissions   of  County  Treasurer. 

Sec.  22.  The  treasurer  of  each  county  shall  be  allowed  to  retain,  on  all 
taxes  paid  and  accounted  for  by  him  each  year  under  this  act,  in  addition 
to  his  salary  or  fees  now  allowed  by  law,  three  per  centum  on  the  first  fifty 
thousand  dollars  so  paid  and  accounted  for  by  him,  one  and  one-half  per 
centum  on  the  next  fifty  thousand  dollars  so  paid  and  accounted  for  by  him, 
and  one-half  of  one  per  centum  on  all  additional  sums  so  paid  and  accounted 
for  by  him;  provided,  that  no  county  treasurer  shall  be  entitled  to  retain 
to  his  own  use  more  than  the  sum  of  two  hundred  dollars  out  of  the  inherit- 
ance taxes  paid  on  account  of  any  transfer  or  transfers  made  by,  or  result- 
ing from  the  death  of  any  one  decedent.  (Stats.  1905,  p.  349;  Stats.  1911, 
p.  725.) 

§  436.    Employment  of  Attorney  by  County  Treasurer. 

Sec.  23.  The  treasurer  of  each  county,  in  his  discretion,  for  the  better 
furtherance  of  the  purposes  of  this  act,  shall  be  allowed  to  employ  such 
special  attorney  or  attorneys,  as  he  may  deem  necessary,  who  shall  have  all 
the  authority  conferred  upon  the  district  attorney  by  sections  17  and  18  of 
this  act,  and  such  attorney  shall  be  paid  for  his  services  out  of  the  money 
collected  under  the  provisions  of  this  act  a  reasonable  fee  to  be  allowed 


408  INHERITANCE  TAXATION. 

by  the  probate  court  having  jurisdiction,  said  fee,  together  with  the  sum 
retained  by  the  county  treasurer,  in  no  case  to  exceed  the  per  centum 
allowed  in  such  case  by  section  twenty-two  of  this  act.  (Stats.  1905,  p.  349; 
Stats.  1911,  p.  725.) 

§  437.     Employment  of  Counsel  by  State  Auditor. 

Sec.  24.  The  state  controller,  whenever  he  shall  be  cited  as  a  party  in 
any  proceeding  or  action  to  determine  any  tax  under  this  act  provided,  or 
whenever  he  shall  deem  it  necessary  for  the  better  enforcement  of  this  act 
to  commence  or  appear  in  any  proceeding  or  action  to  determine  any  tax 
hereunder,  may,  by  and  with  the  consent  and  approval  of  the  attorney 
general,  designate  and  employ  counsel  to  represent  him  on  behalf  of  the 
state,  and,  by  and  with  such  consent  of  attorney  general,  he  is  hereby 
authorized  to  incur  the  necessary  expense  for  such  employment  and  any 
reasonable  and  necessary  expense  incident  thereto.  And  the  county  treas- 
urer is  hereby  authorized  and  directed  to  pay  out  of  any  funds  which  may 
be  in  his  hands  on  account  of  this  tax,  on  presentation  of  a  sworn  itemized 
account  and  on  certificate  of  the  state  controller  and  attorney  general,  all 
expenses  incurred  as  in  this  section  above  provided,  but  no  expense  for  legal 
services,  up  to  and  including  the  entry  of  the  order  of  the  court  fixing  the 
tax  and  the  same  becoming  final,  shall  exceed  ten  per  centum  of  the  tax 
and  penalties  collected;  provided,  that  all  reasonable  and  necessary  expenses 
incurred,  other  than  attorneys'  fees,  including  expense  of  serving  processes, 
procuring  evidence  and  printing  and  preparing  of  necessary  legal  papers, 
may  be  allowed  and  paid  in  the  manner  above  provided,  even  though  no 
tax  be  recovered  in  such  action  or  proceeding,  and  the  limitations  herein 
made  shall  not  apply  thereto.  (Stats.  1905,  p.  350;  Stats.  1911,  p.  725.) 

§  438.    Disposition  of  Taxes  Collected. 

Sec.  25.  All  taxes  levied  and  collected  under  this  act,  up  to  the  amount 
of  $250,000  annually,  shall  be  paid  into  the  treasury  of  the  state,  for  the 
uses  of  the  state  school  fund,  and  all  taxes  levied  and  collected  in  excess  of 
$250,000  annually  shall  be  paid  into  the  state  treasury  to  the  credit  of  the 
general  fund  thereof.  (Stats.  1905,  p.  350;  Stats.  1911,  p.  726.) 

§  439.    Refusal  of  Officers  to  Discharge  Duties— Penalty  Therefor. 

Sec.  26.  Every  officer  who  fails  or  refuses  to  perform,  within  a  reasonable 
time,  any  and  every  duty  required  by  the  provisions  of  this  act,  or  who  fails 
or  refuses  to  make  and  delivet  within  a  reasonable  time  any  statement  or 
record  required  by  this  act,  shall  forfeit  to  the  state  of  California  the  sum 
of  one  thousand  dollars,  to  be  recovered  in  an  action  brought  by  the  attorney 
general  in  the  name  of  the  people  of  the  state  on  the  relation  of  the  con- 
troller. (Stats.  1905,  p.  350;  Stats.  1911,  p.  726.) 

§  440.    Definitions  of  Words  Used  in  Statute. 

See.  27.  The  words  "estate"  and  "property"  as  used  in  this  act  shall  be 
taken  to  mean  the  real  and  personal  property  or  interest  therein  of  the 
testator,  intestate,  grantor,  bargainer,  vendor,  or  donor  passing  or  trans- 


CALIFORNIA    STATUTE.  409 

ferred  to  individual  legatees,  devisees,  heirs,  next  of  kin,  grantees,  donees, 
vendees,  or  successors,  and  shall  include  all  personal  property  within  or 
without  the  state.  The  word  "transfer"  as  used  in  this  act  shall  be  taken 
to  include  the  passing  of  property  or  any  interest  therein,  in  possession  or 
enjoyment,  present  or  future,  by  inheritance,  descent,  devise,  succession,  be- 
quest, grant,  deed,  bargain,  sale,  gift,  or  appointment  in  the  manner  herein 
described.  The  word  "decedent"  as  used  in  this  act  shall  include  the  testa- 
tor, intestate,  grantor,  bargainer,  vendor,  or  donor. 

The  words  "county  treasurer"  and  "district  attorney"  and  "inheritance  tax 
appraiser,"  as  used  in  this  act,  shall  be  taken  to  mean 'the  treasurer  or  the 
district  attorney  or  the  inheritance  tax  appraiser  of  the  county  of  the 
superior  court  having  jurisdiction,  as  provided  in  section  16  of  this  act. 

The  words  "contemplation  of  death"  as  used  in  this  act  shall  be  taken  to 
include  that  expectancy  of  death  which  actuates  the  mind  of  a  person  on 
the  execution  of  his  will,  and  in  nowise  shall  said  words  be  limited  and 
restricted  to  that  expectancy  of  death  which  actuates  the  mind  of  a  person 
in  making  a  gift  causa  mortis,  and  it  is  hereby  declared  to  be  the  intent 
and  purpose  of  this  act  to  tax  any  and  all  transfers  which  are  made  in  lieu 
of  or  to  avoid  the  passing  of  the  property  transferred  by  testate  or  intestate 
laws.  (Stats.  1905,  p.  350;  Stats.  1911,  p.  726.) 

§  441.'  Repeal  of  Prior  Statutes. 

Sec.  28.  An  act  entitled  "An  act  to  establish  a  tax  on  gifts,  legacies, 
inheritances,  bequests,  devises,  successions  and  transfers,  to  provide  for 
its  collection,  and  to  direct  the  disposition  of  its  proceeds;  to  provide  for 
the  enforcement  of  liens  created  by  this  act  and  for  suits  to  quiet  title 
against  claims  of  Hen  arising  hereunder;  to  repeal  an  act  entitled  'An  act 
to  establish  a  tax  on  collateral  inheritances,  bequests,  and  devises,  to  pro- 
vide for  the  collection,  and  to  direct  the  disposition  of  its  proceeds,' 
approved  March  23,  1893,  and  all  amendments  thereto,  and  all  acts  and 
parts  of  acts  in  conflict  with  this  act,"  approved  March  20,  1905,  and  all 
amendments  thereto,  and  all  acts  and  parts  of  acts  in  conflict  with  this  act 
are  hereby  expressly  repealed;  provided,  however,  that  such  repeal  shall  in 
nowise  affect  any  suit,  prosecution  or  court  proceeding  pending  at  the  time 
this  act  shall  take  effect,  or  any  right  which  the  state  of  California  may 
have  at  the  time  of  the  taking  effect  of  this  act,  to  claim  a  tax  upon  any 
property  under  the  provisions  of  the  act  or  acts  hereby  repealed,  for  which 
no  proceeding  has  been  commenced;  nor  affect  any  appeal,  right  of  appeal 
in  any  suit  pending,  or  orders  fixing  tax,  existing  in  this  state  at  the  time 
of  the  taking  effect  of  this  act.  (Stats.  1905,  p.  350;  Stats.  1911,  p.  727.) 

Sec.  29.  This  act  shall  take  effect  and  be  in  force  from  and  after  July 
1,  1911.  (Stats.  1911,  p.  727.) 


410  INHERITANCE  TAXATION. 

CHAPTER  XXV. 

COLORADO  STATUTE. 

(Laws  190S,  pp.  49-57 ;  Sev.  Stats.  1908,  pp.  1305-1309;  Laws  1907,  pp.  554, 
555;  Laws  1909,  pp.  460-466.)    • 

§  442.  Transfers  Subject  to  Tax — Kate  of  Taxation — Exemptions. 

§  443.  Estates  for  Life  or  for  Years  and  Remainders. 

§  444.  Time  for  Payment  of  Tax — Interest  and  Discount. 

§  445.  Collection  of  Tax  by  Executor. 

§  446.  Sale  of  Property  to  Pay  Tax. 

§  447.  Payment  by  Executor  to  County  Treasurer — Receipts  and  Vouchers. 

§  448.  Notice  from  Executor  to  County  Treasurer  of  Estates  Subject  to  Tax. 

§  449.  Refunding  Excess  Payments. 

§  450.  Transfer  or  Delivery  of  Stocks,  Securities  and  Deposits — Notice. 

§  451.  Refund  of  Tax  Erroneously  Collected. 

§  452.  Appraisers  and  Appraisement. 

§  453.  Appraisers  Taking  Illegal  Fees — Penalty. 

§  454.  Jurisdiction  of  Court. 

§  455.  Proceedings  to  Enforce  Tax. 

§  456.  Notice  to  District  Attorney  of  Unpaid  Tax — Proceedings  for  En- 
forcement. 

§  457.  Statement  to  County  Treasurer  of  Unpaid  Taxes. 

§  458.  Payment  of  Expenses  Incurred  by  County  Treasurer. 

§  459.  Record  to  be  Kept  by  State  Treasurer. 

§  460.  Duties  of  County  Treasurer. 

§  461.  Compensation  of  County  Treasurer. 

§  462.  Receipts— Lien  of  Tax— Time  When  Statute  Takes  Effect. 

§  442.     Transfers  Subject  to  Tax — Rate  of  Taxation — Exemptions. 

Sec.  1.  All  property,  real,  personal  and  mixed,  which  shall  pass  by  will 
or  by  the  intestate  laws  of  this  state  from  any  person  who  may  die  seised 
possessed'  of  the  same  while  a  resident  of  this  state,  or  if  decedent  was  not 
a  resident  of  this  state  at  the  time  of  his  death,  which  property  or  any 
part  thereof  shall  be  within  this  state,  or  any  interest  therein  or  income 
therefrom,  which  shall  be  transferred  by  deed,  grant,  sale  or  gift  made  in 
contemplation  of  the  death  of  the  grantor  or  bargainer,  or  intended  to  take 
effect,  in  possession  or  enjoyment  after  such  death,  to  any  person  or  persons, 
or  to  any  body  politic  or  corporate,  in  trust  or  otherwise,  or  by  reason 
whereof  any  person  or  body  politic  or  corporate  shall  become  beneficially 
entitled  in  possession  or  expectation  to  any  property  or  income  thereof,  shall 
be  and  is,  subject  to  a  tax  at  the  rate  hereinafter  specified  to  be  paid  to 
the  treasurer  of  the  proper  county  for  the  use  of  the  state,  and  all  heirs, 
legatees  and  devisees,  administrators,  executors  and  trustees  shall  be  liable 
for  any  and  all  such  taxes  until  the  same  shall  have  been  paid  as  hereinafter 
directed.  Whenever  the  beneficial  interest  to  any  property  or  income  there- 
from shall  pass  to  or  for  the  use  of  any  father,  mother,  husband,  wife,  child, 


COLORADO  STATUTB.  411 

brother,  sister,  wife  or  widow  of  the  son,  or  the  husband  of  the  daughter, 
or  any  child  or  children  adopted  as  such  in  conformity  with  the  laws  of  the 
state  of  Colorado,  or  to  any  person  to  whom  the  deceased,  for  not  less  than 
ten  years  prior  to  the  death,  stood  in  the  acknowledged  relation  of  a  parent, 
or  to  any  lineal  descendant  born  in  lawful  wedlock,  in  every  such  case  the 
rate  of  tax  shall  be  two  dollars  on  every  hundred  dollars  of  the  clear  market 
value  of  such  property  received  by  each  person,  and  at  and  after  the  same 
rate  for  every  less  amount;  provided,  that  the  sum  of  ten  thousand  dollars 
($10,000)  of  any  such  estate,  vesting  in  the  grantee  in  perpetuity  shall  not 
be  subject  to  any  s>uch  duty  or  tax,  and  that  only  the  amount  in  excess  of  ten 
thousand  dollars  ($10,0€0)  shall  be  subject  to  the  above  duty  or  tax.  When 
the  beneficial  interests  to  any  property  or  income  therefrom  shall  pass  to  or 
from  the  use  of  any  uncle,  aunt,  niece,  nephew,  or  any  lineal  descendant  of 
the  same,  in  every  such  case  the  rate  of  such  tax  shall  be  three  dollars  on 
every  one  hundred  dollars  of  the  clear  market  value  of  such  property  re- 
ceived by  each  person.  In  all  other  cases  the  rate  shall  be  as  follows:  On 
each  and  every  hundred  dollars  of  the  clear  market  value  of  all  property 
and  at  the  same  rate  for  any  less  amount;  on  all  estates  of  ten  thousand 
dollars  and  less,  three  dollars;  on  all  estates  of  over  ten  thousand  dollars 
and  not  exceeding  twenty  thousand  dollars,  four  dollars;  on  all  estates  over 
twenty  thousand  dollars  and  not  exceeding  fifty  thousand  dollars,  five  dol- 
lars, and  on  all  estates  over  fifty  thousand  dollars,  and  not  exceeding  five 
hundred  thousand  dollars,  six  dollars,  and  on  all  estates  over  five  hundred 
thousand  dollars,  ten  dollars;  provided,  that  an  estate  in  the  above  cas«  which 
may  be  valued  at  a  less  sum  than  five  hundred  dollars  shall  not  be  subject  to 
any  such  duty  or  tax;  provided,  that  the  following  classes  of  property  shall 
be  exempt  from  the  inheritance  tax,  to  wit:  All  property  devised,  bequeathed 
or  descending  by  deed  in  contemplation  of  death  to  the  state  of  Colorado, 
or  to  any  county,  city,  town,  and  any  other  municipality,  or  for  the  use  of 
public  libraries,  for  religious  or  charitable  purposes  exclusively,  or  for 
schools  and  colleges  not  for  profit.  (Mills'  Stats.  1905,  p.  1016;  Rev.  Stats. 
1908,  p.  1305;  Laws  1909,  p.  460.) 

§  443.     Estates  for  Life  or  for  Years  and  Remainders. 

Sec.  2.  When  any  person  shall  bequeath  or  devise  any  property  or  inter- 
est therein  or  income  therefrom  to  mother,  father,  husband,  wife,  brother, 
sister,  the  widow  of  the  son,  the  husband  of  the  daughter,  or  a  lineal  de- 
scendant during  the  life  or  for  a  term  of  years  and  remainder  to  the 
collateral  heir  of  the  decedent,  or  to  the  stranger  in  blood  or  to  the  body 
politic  or  corporate  at  their  decease,  or  on  the  expiration  of  such  term,  the 
property  so  passing  shall  be  appraised  immediately  after  the  death  at  what 
was  the  fair  market  value  thereof  at  the  time  of  the  death  of  the  decedent 
in  the  manner  hereinafter  provided,  and  the  tax  prescribed  by  this  act  on 
the  estate  of  the  deceased  shall  be  immediately  due  and  payable  to  the 
treasurer  of  the  proper  county,  and,  together  with  the  interest  thereon, 
shall  be  and  remain  a  lien  on  said  property  until  the  same  is  paid.  (Mills' 
Stats.  1905,  p.  1017;  Rev.  Stats.  1908,  p.  1306;  Laws  1909,  p.  462.) 


412  INHERITANCE  TAXATION. 

§  444.    Time  for  Payment  of  Tax — Interest  and  Discount. 

Sec.  3.  All  taxes  imposed  by  this  act,  unless  otherwise  herein  provided 
for,  shall  be  due  and  payable  at  the  death  of  the  decedent,  and  interest 
at  the  rate  of  six  per  cent  per  annum  shall  be  charged  and  collected  thereon 
for  such  time  aa  said  taxes  are  not  paid;  provided,  that  if  said  tax  is  paid 
within  six  months  from  the  accruing  thereof,  interest  shall  not  be  charged 
or  collected  thereon,  but  a  discount  of  five  per  cent  shall  b«  allowed  and 
deducted  from  said  tax,  and  in  all  cases  where  the  executors,  administrators 
or  trustees  do  not  pay  such  tax  within  one  year  from  the  death  of  the  dece- 
dent, they  shall  be  required  to  give  a  bond  in  the  form  and  to  the  effect 
prescribed  in  section  twenty-two  of  this  act  for  the  payment  of  said  tax, 
together  with  interest.  (Mills'  Stats.  1905,  p.  1018;  Kev.  Stats.  1908, 
p.  1306.) 

§  445.    Collection  of  Tax  by  Executor. 

Sec.  4.  Any  administrator,  executor  or  trustee  having  any  charge  or  trust 
in  legacies  or  property  for  distribution  subject  to  the  said  tax  shall  deduct 
the  tax  therefrom,  or  if  the  legacy  or  property  be  not  money  he  shall  collect 
a  tax  thereon  upon  the  appraised  value  thereof  from  the  legatee  or  person 
entitled  to  such  property,  and  he  shall  not  deliver  or  be  compelled  to  deliver 
any  specific  legacy  or  property  subject  to  tax  to  any  person  until  he  shall 
have  collected  the  tax  thereon,  and  whenever  any  such  legacy  shall  be 
charged  upon  or  payable  out  of  real  estate,  the  executor,  administrator  or 
trustee,  before  paying  the  same  shall  deduct  said  tax  therefrom  and  pay 
the  same  to  the  county  treasurer  for  the  use  of  the  state,  and  the  same  shall 
remain  a  charge  on  such  real  estate  until  paid,  and  the  payment  thereof 
shall  be  enforced  by  the  executor,  administrator  or  trustee  in  the  same 
manner  that  the  said  payment  of  said  legacies  might  be  enforced;  if,  how- 
ever, such  legacy  be  given  in  money  to  any  person  for  a  limited  period,  he 
shall  retain  the  tax  upon  the  whole  amount,  but  if  it  be  not  in  money,  he 
shall  make  application  to  the  court  having  jurisdiction  of  his  accounts  to 
make  an  apportionment,  if  the  case  requires  it,  of  the  sum  to  be  paid  into 
his  hands  by  such  legatees,  and  for  such  further  order  relative  thereto  as  the 
case  may  require.  (Mills'  Stats.  1905,  p.  1018;  Kev.  Stats,  1908,  p.  1306.) 

§  446.     Sale  of  Property  to  Pay  Tax. 

Sec.  5.  All  executors,  administrators  and  trustees  shall  have  full  power 
to  sell  so  much  of  the  property  of  the  decedent  as  will  enable  them  to  pay 
said  tax,  in  the  same  manner  as  they  may  be  enabled  to  do  by  law,  for  the 
payment  of  debts  of  their  testators  and  intestates,  and  the  amount  of  said 
tax  shall  be  paid  as  hereinafter  directed.  (Mills'  Stats.  1905,  p.  1018;  Rev. 
Stats.  1908,  p.  1306.) 

§  447.  Payment  by  Executor  to  County  Treasurer — Receipts  and  Vouchers. 
Sec.  6.  Every  sum  of  money  retained  by  any  executor,  administrator  or 
trustee,  or  paid  into  his  hands  for  any  tax  on  any  property,  shall  be  paid 
by  him  within  thirty  days  thereafter  to  the  treasurer  of  the  proper  county, 
and  the  said  treasurer  or  treasurers  shall  give,  and  every  executor,  adminis* 


COLORADO  STATUTE.  413 

trator  or  trustee  shall  take,  duplicate  receipts  from  him  of  said  payments, 
one  of  which  receipts  he  shall  immediately  send  to  the  state  treasurer,  whose 
duty  it  shall  be  to  charge  the  treasurer  so  receiving  the  tax  with  the  amount 
thereof,  and  shall  seal  said  receipt  with  the  seal  of  his  office  and  counter- 
sign the  same  and  return  it  to  the  executor,  administrator  or  trustee,  where- 
upon it  shall  be  a  proper  voucher  in  the  settlement  of  his  accounts,  but  the 
executor,  administrator  or  trustee  shall  not  be  entitled  to  credit  in  his 
accounts  or  be  discharged  from  liability  for  such  tax  unless  he  shall  produce 
a  receipt  so  sealed  and  countersigned  by  the  treasurer  and  a  copy  thereof 
certified  by  him.  (Mills'  Stats.  1905,  p.  1018;  Eev.  Stats.  1908,  p.  1307.) 

§  448.    Notice  from  Executor  to  County  Treasurer  of  Estates  Subject  to 
Tax 

Sec.  7.  Whenever  any  of  the  real  estate  of  which  any  decedent  may  die 
seized  shall  pass  to  any  body  politic  or  corporate,  or  to  any  person  or  per- 
sons, or  in  trust  for  them,  or  some  of  them,  it  shall  be  the  duty  of  the 
executor,  administrator  or  trustee  of  such  decedent  to  give  information 
thereof  in  writing  to  the  treasurer  of  the  county  where  said  real  estate  is 
situated,  within  six  months  after  they  undertake  the  execution  of  their 
duties,  or  if  the  fact  be  not  known  to  them  within  that  period,  then  within 
one  month  after  the  same  shall  have  come  to  their  knowledge.  (Mills'  Stats. 
1905,  p.  1019;  Eev.  Stats.  1908,  p.  1307.) 

§  449.     Refunding  Excess  Payments. 

Sec.  8.  Whenever  debts  shall  be  proved  against  the  estate  of  the  dece- 
dent after  distribution  of  legacies  from  which  the  inheritance  tax.  has  been 
deducted  in  compliance  with  this  act,  and  the  legatee  is  required  to  refund 
any  portion  of  the  legacy,  a  due  proportion  of  the  said  tax  shall  be  repaid 
to  him  by  the  executor  or  administrator,  if  the  said  tax  has  not  been  paid 
into  the  state  or  county  treasury,  or  by  the  county  treasurer  if  it  has  been 
so  paid.  (Mills'  Stats.  1905,  p,  1019;  Kev.  Stats.  1908,  p.  1307.) 

§  450.     Transfer  or  Delivery  of  Stocks,  Securities  and  Deposits — Notice. 

Sec.  9.  If  a  foreign  executor,  administrator  or  trustee,  shall  assign  or 
transfer  any  stock  or  obligations  in  this  state  standing  in  the  name  of  a 
decedent,  or  in  trust  for  a  decedent,  liable  to  any  such  tax,  the  tax  shall 
be  paifl  to  the  treasurer  of  the  proper  county  on  the  transfer  thereof.  No 
safe  deposit  company,  bank  or  other  institution,  person  or  persons,  holding 
or  controlling  the  transfer  of  securities  or  assets  of  a  decedent,  resident  or 
nonresident,  including  the  shares  of  capital  stock  of,  or  other  interest  in, 
such  institution  shall  deliver  or  transfer  the  same  to  the  executors,  ad- 
ministrators, or  legal  representatives  of  the  decedent,  or  upon  their  order 
or  request,  unless  notice  in  writing  of  the  time  and  place  of  such  intended 
transfer  be  served  upon  the  said  appraiser  of  the  proper  district  and  the 
attorney  general  of  the  state  at  least  ten  days  prior  to  the  said  transfer; 
nor  shall  any  such  safe  deposit  company,  bank  or  other  institution,  person 
or  persons,  deliver  or  transfer  any  securities  or  assets  of  a  sufficient  portion  or 
amount  thereof  to  pay  any  tax  and  interest  which  may  be  due  or  thereafter 


414  INHERITANCE  TAXATION. 

be  assessed  the  estate  of  a  nonresident  decedent  without  retaining  on 
account  of  the  transfer  of  such  securities  or  assets  under  the  provisions  of 
this  article,  unless  the  attorney  general  consents  thereto  in  writing.  And  it 
shall  be  lawful  for  the  said  appraiser  or  attorney  general  to  examine  said 
securities  or  assets  at  the  time  of  such  delivery  or  transfer.  Failure  to 
serve  such  notice  or  to  allow  such  examination,  or  to  retain  a  sufficient  por- 
tion or  amount  to  pay  such  tax  and  interest  as  herein  provided,  shall  render 
such  safe  deposit  company,  trust  company,  bank  or  other  institution,  person 
or  persons,  liable  to  the  payment  of  the  tax  and  interest  due  upon  said 
securities  or  assets,  in  pursuance  of  the  provisions  of  this  article.  (Mills' 
Stats.  1905,  p.  1019;  Rev.  Stats.  1908,  p.  1307;  Laws  1909,  p.  462.) 

§  451.    Refund  of  Tax  Erroneously  Collected. 

Sec.  10.  When  any  amount  of  said  tax  has  been  paid  or  shall  have  been 
paid  erroneously  to  the  state  treasurer,  it  shall  be  lawful  for,  and  be  the 
duty  of,  the  state  auditor,  upon  certificate  of  any  county  treasurer,  who  col- 
lected the  same,  and  of  the  state  treasurer,  and  of  the  judge  of  the  court, 
which  ordered  the  payment  of  any  such  erroneous  tax  (which  said  last 
certificate  shall  designate  the  amount  erroneously  paid  by  each  person  pay- 
ing same),  to  draw  a  warrant  on  the  state  treasurer,  payable  to  the  executor, 
administrator  or  trustee,  person  or  persons,  who  may  have  paid  any  such 
tax  in  error,  or  to  the  heirs  at  law  or  person  or  persons  legally  entitled  thereto, 
the  amount  of  such  tax  so  erroneously  paid,  and  it  shall  be  the  duty  of  the 
state  treasurer,  upon  presentation  of  any  such  warrant  to  pay  the  same. 

It  shall  also  be  the  duty  of  any  county  treasurer  to  whom  any  inherit- 
ance tax  has  been  erroneously  paid,  and  to  whom  a  commission  or  other 
allowance  has  been  paid  for  collecting  same,  upon  certificate  of  the  judge 
of  the  court  under  seal  of  the  court  which  ordered  the  payment  of  any 
such  erroneous  tax  being  filed  with  him,  showing  in  what  amount  the  pay- 
ment of  any  such  inheritance  tax  waa  erroneous,  to  refund  and  repay  to 
the  executor,  administrator  or  trustee,  person  or  persons  who  may  have 
paid  any  amount  of  such  tax  in  error,  or  to  the  heirs  at  law  or  person  or 
persons  legally  entitled  thereto,  the  amount  of  commission  or  fees  charged 
by  such  county  treasurer  for  collecting  the  amount  so  erroneously  paid. 

Provided  that  all  applications  for  the  repayment  of  said  tax  erroneously 
paid,  and  for  said  treasurer's  commission,  shall  be  made  within  two  years 
from  the  date  of  said  payment. 

This  section  as  hereby  amended  shall  apply  to  all  erroneous  payments 
of  inheritance  tax  heretofore  made,  as  well  as  to  those  which  may  here- 
after be  made.  (Mills'  Stats.  1905,  p.  1019;  Eev.  Stats.  1908,  p.  1307;  Laws 
1907,  p.  554.) 

§  452.    Appraisers  and  Appraisements. 

Sec.  11.  For  the  purpose  of  facilitating  and  properly  collecting  the  said 
inheritance  tax,  and  in  order  to  fix  the  value  of  the  property  of  persons, 
whose  estates  shall  be  subject  to  the  payment  of  said  tax,  the  said  coun- 
ties of  the  state  of  Colorado  shall  be  grouped  into  three  districts,  to  be 
known  as  districts  number  one,  number  two  and  number  three,  and  the 


COLORADO  STATUTE.  415 

attorney  general  snail  appoint  one  person  as  appraiser  for  each  of  these 
districts  to  serve  for  a  period  of  two  years;  and  the  attorney  general  shall 
have  the  power  of  removal  of  any  of  the  said  appraisers  for  malfeasance 
in  office  or  failure  to  perform  their  duties  as  appraisers,  as  hereinafter 
provided. 

The  appraiser  appointed  for  district  number  one  shall  receive  an  annual 
salary  of  twenty-four  hundred  dollars  ($2,400.00)  together  with  his  actual 
and  necessary  traveling  expenses  and  witness  fees.  The  appraisers  for 
district  number  two  and  district  number  three  shall  each  receive  an  annual 
salary  of  eighteen  hundred  dollars  ($1,800.00),  together  with  their  actual 
and  necessary  traveling  expenses  and  witness  fees.  The  state  treasurer 
shall  pay  the  said  salaries  of  the  said  appraisers,  together  with  their  neces- 
sary traveling  expenses  and  witness  fees  monthly  out  of  any  fund  in  his 
hands  or  custody  on  account  of  the  inheritance  tax,  and  he  shall  retain 
out  of  any  funds  in  his  hands  received  from  said  inheritance  tax  a  suffi- 
cient fund,  at  all  times,  to  pay  the  said  salaries  of  said  appraisers,  together 
with  a  sufficient  fund  to  pay  the  necessary  traveling  expenses  and  witness 
fees  of  the  said  appraisers.  The  state  auditor  is  authorized  to  issue  a 
warrant  upon  the  state  treasurer,  upon  presentation  to  him  of  a  voucher, 
signed  by  the  governor  and  the  attorney  general  for  the  amount  of  said 
salaries,  and  the  said  necessary  traveling  expenses  and  witness  fees. 

The  counties  of  the  state  shall  be  and  hereby  are  grouped,  for  the  pur- 
pose of  appointment  of  appraisers,  the  appraisement  of  estates  and  the 
collection  of  the  inheritance  tax  into  the  following  districts: 

District  Number  One:  Adams,  Arapahoe,  Cheyenne,  Clear  Creek,  Denver, 
Douglas,  Elbert,  Gilpin,  Jefferson,  Eat  Carson,  Logan,  Morgan,  Phillips, 
Sedgwick,  Washington,  Weld,  Yuma. 

District  Number  Two:  Archuleta,  Baca,  Bent,  Conejos,  Costilla,  Custer, 
Dolores,  El  Paso,  Fremont,  Huerfano,  Kiowa,  La  Plata,  Las  Animas,  Lin- 
coln, Mineral,  Montezuma,  Otero,  Prowers,  Pueblo,  Eio  Grande,  Saguache, 
San  Juan,  Teller. 

District  Number  Three:  Boulder,  Chaff ee,  Delta,  Eagle,  Garfield,  Grand, 
Gunnison,  Hinsdale,  Lake,  Larimer,  Mesa,  Montrose,  Ouray,  Park,  Pitkin, 
Eio  Blanco,  Routt,  San  Miguel,  Summit. 

Each  of  the  said  appraisers  shall  file  with  the  secretary  of  the  state 
his  oath  of  office,  and  his  official  bonds  in  the  penal  sum  of  not  less  than 
one  thousand  dollars  ($1,000.00),  nor  more  than  twenty  thousand  dollars 
($20,000.00)  in  the  discretion  of  the  attorney  general,  conditioned  upon  the 
faithful  performance  of  his  duties  as  such  appraiser,  which  bond  shall  be 
approved  by  the  attorney  general. 

It  shall  be  the  duty  of  the  several  appraisers,  as  often  as,  or  whenever  the 
occasion  may  require,  or  upon  the  motion  of  any  person  interested  in  the 
estate,  including  the  state  or  the  county  court  itself,  to  appraise  the  estate 
of  any  deceased  person  in  the  county  to  which  the  appraiser  is  appointed, 
and  the  appraiser  shall  forthwith  give  notice  by  mail  to  all  persons  known 
to  have  or  claim  an  interest  in  such  property,  and  to  such  persons  as  the 
county  judge  may  by  order  direct,  of  the  time  and  place  at  which  he  will 
appraise  such  property,  and  at  such  time  and  place  to  appraise  the  same  at 


416  INHERITANCE  TAXATION. 

a  fair  market  value,  and  for  that  purpose  the  appraiser  is  authorized  by 
leave  of  the  county  judge  to  use  subpoenas  for  and  compel  the  attendance 
of  witnesses  before  him,  and  to  take  the  evidence  of  such  witnesses  under 
oath  concerning  such  property  and  the  value  thereof,  and  he  shall  make  a 
report  in  duplicate  thereof  and  of  such  value  in  writing  to  the  county  court 
and  the  attorney  general  showing  the  fair  market  value  of  all  of  the  estate 
belonging  to  the  deceased  at  the  time  of  his  death  and  the  description  of 
the  same;  all  debts,  claims,  fees  and  commissions  filed  against  said  estate 
or  allowed  by  the  county  court,  together  with  all  fees  which  have  been 
allowed  to  the  executor  or  administrator,  or  which  may  be  claimed  by  the 
executor  or  administrator  or  which  may  be  claimed  by  the  executor  or 
administrator  for  services  in  behalf  of  said  estate;  the  names,  relationship 
and  residence  of  all  persons  receiving  or  claiming  any  of  the  estate  of  the 
deceased,  together  with  the  names  of  all  corporations,  or  institutions  claim- 
ing any  of  the  estate  of  the  deceased;  a  description  of  any  property  belong- 
ing to  the  estate  of  said  decedent  that  may  have  been  transferred  by  deed, 
grant,  sale  or  gift  made  in  contemplation  of  death  of  the  grantor,  or 
bargainer,  or  intended  to  take  effect  in  possession  or  enjoyment  after  such 
death;  a  description  of  all  estates  left  by  the  decedent,  whether  estates  in 
fee,  annuities,  life  estates  or  for  a  term  of  years;  whether  such  decedent 
died  intestate  or  left  a  will,  together  with  the  depositions  of  the  witnesses 
examined  and  such  other  facts  in  relation  thereto  as  the  county  court  may 
by  order  require  to  be  filed  in  the  office  of  the  clerk  of  said  county  court; 
and  from  this  report  the  said  county  court  shall  forthwith  make  and  order 
and  fix  the  then  cash  value  of  all  estates,  annuities  and  life  estates  or  terms 
of  years  growing  out  of  said  estate,  and  the  tax  to  which  the  same  is 
liable,  and  shall  immediately  give  notice  by  mail  to  all  parties  known  to  be 
interested  therein.  It  shall  be  the  duty  of  each  of  the  said  appraisers  upon 
learning  of  the  death  of  any  person  known  to  have  or  supposed  to  have 
died  possessed  of  an  estate  in  his  district  to  immediately  make  an  investiga- 
tion, and  to  inform  the  attorney  general  and  county  court  of  the  county 
wherein  the  person  lived,  of  any  information  received  by  him  respecting 
the  estate  of  the  deceased.  Any  person  or  persons  dissatisfied  with  the 
assessment  made  or  tax  fixed  by  the  county  court  of  the  estate  of  the  dece- 
dent may  appeal  therefrom,  after  the  fixing  of  the  tax  by  the  county  court, 
to  the  district  court  of  the  proper  county,  within  sixty  days  after  the  making 
of  said  assessment  and  the  fixing  of  said  tax,  upon  giving  good  and  sufficient 
security  to  the  satisfaction  of  the  county  judge  to  pay  all  costs,  together 
with  whatever  taxes  shall  be  fixed  by  the  county  court.  Witnesses  sub- 
poenaed by  said  appraiser  shall  be  paid  such  fees  as  now  provided  by  law; 
provided,  that  the  appraiser  may  with  the  consent  of  the  county  court  on 
the  petition  of  the  attorney  general,  call  in  expert  witnesses,  the  amount 
of  whose  fees  shall  be  determined  by  the  county  court.  (Mills'  Stats.  1905, 
p.  1019;  Laws  1909,  p.  463.) 

§  453.    Appraisers  Taking  Illegal  Fees — Penalty. 

Sec.  12.     Any  appraiser  appointed  by  this  act  who  shall  take  any  fees 
or  reward  from  any  executor,  administrator,  trustee,  legatee,  next  of  kin 


COLORADO  STATUTE.  417 

or  heir  of  any  decedent,  or  from  any  other  person  liable  to  pay  said  tax  or 
any  portion  thereof,  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
in  any  court  having  jurisdiction  of  misdemeanors  he  shall  be  fined  not  less 
than  two  hundred  and  fifty  dollars,  nor  more  than  five  hundred  dollars,  and 
imprisoned  not  exceeding  ninety  days,  and  in  addition  thereto  the  county 
judge  shall  dismiss  him  from  such  service.  (Mills'  Stats.  1905,  p.  1020; 
Kev.  Stats.  1908,  p.  1308.) 

§  454.    Jurisdiction  of  Court. 

Sec.  13.  The  county  court  in  the  county  in  which  the  real  property  is 
situated,  of  the  decedent  who  was  not  a  resident  of  the  state,  or  in  the 
county  of  which  the  deceased  was  a  resident  at  the  time  of  his  death,  shall 
have  jurisdiction  to  hear  and  determine  all  questions  in  relation  to  the  tax 
arising  under  the  provisions  of  this  act,  and  the  county  court  first  acquiring 
jurisdiction  hereunder  shall  retain  the  same  to  the  exclusion  of  every  other. 
(Mills'  Stats.  1905,  p.  1020;  Eev.  Stats.  1908,  p.  1308.) 

§  455.     Proceedings  to  Enforce  Tax. 

Sec.  14.  If  it  shall  appear  to  the  county  court  that  any  tax  accruing 
under  this  act  has  not  been  paid  according  to  law,  it  shall  issue  a  summons 
summoning  the  persons  interested  in  the  property  liable  to  the  tax  to  appear 
before  the  court  on  a  day  certain  not  more  than  three  months  after  the 
date  of  such  summons,  to  show  cause  why  said  tax  should  not  be  paid.  The 
process,  practice  and  pleadings  and  the  hearing  and  determination  thereof, 
and  the  judgment  in  said  court  in  such  cases,  shall  be  the  same  as  those  now 
provided  or  which  may  hereafter  be  provided  in  probate  cases  in  the  county 
courts  in  this  state,  and  the  fees  and  costs  in  such  cases  shall  be  the  same 
as  in  probate  cases  in  the  county  courts  of  this  state.  (Mills'  Stats.  1905, 
p.  1021;  Eev.  Stats.  1908,  p.  1308.) 

§  456.    Notice    to    District    Attorney    of    Unpaid    Tax — Proceedings    for 

Enforcement. 

Sec.  15.  Whenever  the  treasurer  of  any  county  shall  have  reason  to 
believe  that  any  tax  is  due  and  unpaid  under  this  act,  after  the  refusal  or 
neglect  of  the  person  interested  in  the  property  liable  to  pay  said  tax  to 
pay  the  same,  he  shall  notify  the  district  attorney  of  the  proper  county,  in 
writing,  of  such  refusal  to  pay  said  tax,  and  the  district  attorney  so  notified, 
if  he  has  proper  cause  to  believe  a  tax  is  due  and  unpaid,  shall  prosecute  the 
proceeding  in  the  county  court  in  the  proper  county,  as  provided  in  section 
34  [14]  of  this  act  for  the  enforcement  and  collection  of  such  tax,  and  in  such 
case  said  court  shall  allow  as  costs  in  the  said  case  such  fees  to  said  attorney 
as  he  may  deem  reasonable.  (Mills'  Stats.  1905,  p.  1021;  Eev.  Stats.  1908, 
p.  1309.) 

§  457.    Statement  to  County  Treasurer  of  Unpaid  Taxes. 

Sec.  16.     The  county  judge  and  county  clerk  of  each  county  shall,  every 
three  months,  make  a  statement  in  writing  to  the  county  treasurer  of  the 
county  of  the  property  from  which,  or  the  party  from  whom,  he  has  reason 
27 


418  INHERITANCE  TAXATION. 

to  believe  a  tax  under  this  act  is  due  and  unpaid.     (Mills'  Stats.  1905,  p. 
1021;  Eev.  Stats.  1908,  p.  1309.) 

§  458.    Payment  of  Expenses  Incurred  by  County  Treasurer. 

Sec.  17.  Whenever  the  county  judge  of  any  county  shall  certify  that  there 
was  probable  cause  for  issuing  a  summons  and  taking  the  proceedings 
specified  in  section  34  [14]  of  this  act,  the  state  treasurer  shall  pay  or  allow 
to  the  treasurer  of  any  county  all  expenses  incurred  for  service  of  summons 
and  his  other  lawful  disbursements  that  have  not  otherwise  been  paid. 
(Mills'  Stats.  1905,  p.  1021;  Rev.  Stats.  1908,  p.  1309.) 

§  459.     Record  to  be  Kept  by  State  Treasurer. 

Sec.  18.  The  treasurer  of  the  state  shall  furnish  to  each  county  judge  a 
book,  in  which  he  shall  enter  the  returns  made  by  appraisers,  the  cash  value 
of  annuities,  life  estates  and  terms  of  years  and  other  property  fixed  by 
him,  and  the  tax  assessed  the-reon,  and  the  amounts  of  any  receipts  for 
payments  thereof  filed  with  him  which  book  shall  be  kept  in  the  office  of 
the  county  judge  as  a  public  record.  (Mills'  Stats.  1905,  p.  1021;  Rev.  Stats. 
1908,  p.  1309.) 

§  460.     Duties  of  County  Treasurer. 

Sec.  19.  The  treasurer  of  each  county  shall  collect  and  pay  the  state 
treasurer  all  taxes  that  may  be  due  and  payable  under  this  act,  who  shall 
give  him  a  receipt  therefor,  of  which  collection  and  payment  he  shall  make 
a  report  under  oath  to  the  state  auditor  on  the  first  Mondays  in  March  and 
September  of  each  year,  stating  for  what  estate  paid,  and'  in  such  form 
and  containing  such  particulars  as  the  auditor  may  prescribe,  and  for  all 
said  taxes  collected  by  him  and  not  paid  to  the  state  treasurer  by  the  first 
day  of  October  and  April  of  each  year,  he  shall  pay  interest  at  the  rate 
of  ten  per  cent  per  annum.  (Mills'  Stats.  1905,  p.  102£;  Rev.  Stats.  1908, 
p.  1309.) 

§  461.    Compensation  of  County  Treasurer. 

Sec.  20.  The  treasurer  of  each  county  s'hall  be  allowed  to  retain  two  per 
cent  on  all  taxes  paid  and  accounted  for  by  him  under  this  act,  in  full  for 
his  services  in  collecting  and  paying  the  same,  to  be  taken  as  a  part  of  his 
salary  or  fees  now  allowed  by  law,  but  not  otherwise.  (Mills'  Stats.  1905, 
p.  1022;  Rev.  Stats.  1908,  p.  1309.) 

§  462.    Receipts — Lien  of  Tax — Time  When  Statute  Takes  Effect. 

Sec.  21.  Any  person,  or  body  politic  or  corporate,  shall,  upon  the  pay- 
ment of  the  sum  of  fifty  cents,  be  entitled  to  a  receipt  from  the  county 
treasurer  of  any  county,  or  the  copy  of  the  receipt,  at  his  option,  that  may 
have  been  given  by  said  treasurer  for  the  payment  of  any  tax  under  this 
act,  to  be  sealed  with  the  seal  of  his  office,  which  receipt  shall  designate  on 
what  real  property,  if  any,  of  which  any  decedent  may  have  died  seised, 
eaid  tax  has  been  paid  and  by  whom  paid,  and  whether  or  not  it  is  in  full 
of  said  tax;  and  said  receipt  may  be  recorded  in.  the  clerk's-  office  of  said 


COLORADO  STATUTE.  419 

county  in  which  the  property  may  be  situated,  in  the  book  to  be  kept  by  said 
clerk  for  such  purpose. 

The  lien  of  the  inheritance  tax  provided  herein  shall  continue  until  the 
said  tax  is  settled  and  satisfied;  provided,  that  lien  shall  be  limited  to  the 
property  chargeable  therewith. 

This  act  shall  affect  only  the  estates  of  decedents  dying  after  its  passage 
and  estates  of  all  decedents  dead  before  its  passage  shall  be  taxed  under 
previously  existing  law.  (Mills'  Stats.  1906,  p.  1022;  Ber.  Stats.  1908,  p. 
1309;  Laws  1909,  p.  466.) 


420  INHERITANCE  TAXATION. 


CHAPTER  XXVI. 
CONNECTICUT  STATUTE. 

(Gen.  Stats.  190*.  pp.  61S-616;  Pub.  Acts.  190S,  pp.  4S,  4S  ;  Pub.  Acts.  1905, 
pp.  455,  456;  Pub.  Acts.  1907,  pp.  7S9-7S1;  Pub.  Acts  1909,  pp.  1161-1163; 
Pub.  Acts  1911,  pp.  1478,  1479.) 

§  463.  Exemptions  from  Tax — Nonresident  Decedents. 

§  464.  Transfers  Subject  to  Tax — Rates — Persons  Liable — Interest. 

§  465.  Nonresident  Decedents — Stocks,  Bonds  and  Securities. 

§  466.  Ancillary  Administration  on  Estate  of  Nonresident — Noticft. 

§  467.  Effect  of  Failure  to  Take  Out  Ancillary  Administration, 

§  468>.  Transfer  or  Delivery  of  Stocks  and  Property — Notice. 

§  469.  Transfer  or  Delivery  of  Stocks  and  Property — Assessment  by  Tax 

Commissioner. 

§  470.  Repeal  of  Certain  Sections. 

§  471.  Inventories  and  Appraisement* 

§  472.  Payment  by  Executor  to  State  Treasurer. 

§  473.  Estates  for  Years  or  for  Life  and  Remainders. 

§  474.  Sale  of  Property  to  Pay  Tax. 

§  475.  Application  by  Treasurer  for  Appointment  of  Administrator. 

§  476.  Jurisdiction  of  Probate  Court — State  Treasurer  to  Represent  State. 

§  477.  Executor's  Account  not  Settled  Until  Taxes  Paid. 

§  47a  Transfers  to  Take  Effect  upon  Death  of  Grantor. 

§  479.  Powers  of  Appointment. 

§  480.  Time  When   Statute  Takes  Effect. 

§  463.     Exemptions  from  Tax — Nonresident  Decedents. 

Sec.  2367.  The  estate  of  every  deceased  person,  to  the  amount  of  ten 
thousand  dollars,  when  such  estate  shall  pass  to  the  parent  or  parents,  lineal 
descendants,  legally  adopted  child,  lineal  descendants  of  any  legally  adopted 
child,  the  wife  or  widow  of  a  son,  whether  such  son  was  born  in  wedlock  or 
adopted,  the  husband  of  a  daughter,  whether  such  daughter  was  born  in 
wedlock  or  adopted,  or  the  brother  or  sister  of  the  decedent;  and,  in  addition 
to  said  amount,  all  gifts  of  paintings,  pictures,  books,  engravings,  bronzes, 
curios,  bric-a-brac,  arms  and  armor,  and  collections  of  articles  of  beauty  or 
interest,  made  by  will  to  any  corporation  or  institution  located  in  this  state 
for  free  exhibition  and  preservation  for  public  benefit;  also,  in  addition  to 
said  amount,  every  devise,  bequest,  or  inheritance,  not  exceeding  five  hun- 
dred dollars  in  amount  or  appraised  value,  passing  to  other  kindred  or 
strangers  to  the  blood,  or  to  a  corporation,  voluntary  association,  or  society, 
shall  be  exempt  from  the  payment  of  any  succession  tax;  and,  subject 
to  such  exemption,  the  estate  of  every  deceased  person  shall  be  subject  to 
the  tax  provided  for  in  section  2368.  When  a  portion  of  the  property  passes 
to  or  for  the  use  of  the  parent  or  parents,  husband,  wife,  lineal  descendants, 
legally  adopted  child,  lineal  descendants  of  any  legally  adopted  child,  the 
wife  or  widow  of  a  son,  whether  such  son  was  born  in  wedlock  or  legally 


CONNECTICUT  STATUTE.  421 

adopted,  the  husband  of  a  daughter,  whether  such  daughter  was  born  in  wed- 
lock or  legally  adopted,  or  the  brother  or  sister  of  the  decedent,  and  the 
remaining  portion  to  other  kindred  or  strangers  to  the  blood,  or  to  a  cor- 
poration, voluntary  association,  or  society,  the  amount  of  the  estate  passing 
to  persons  mentioned  in  the  first  class  exempted  from  taxation  shall  be  that 
proportion  of  ten  thousand  dollars  which  the  value  of  the  property  passing 
to  those  persons  bears  to  the  total  value  of  the  whole  estate.  The  amount 
of  the  property  of  the  estates  of  nonresident  decedents  which  shall  be 
exempt  from  the  payment  of  a  succession  tax  shall  be  only  that  proportion 
of  the  whole  exempted  amount  which  is  provided  for  the  estates  of  resident 
decedents  which  the  amount  of  the  estate  of  the  nonresident  decedent  which 
is  actually  or  constructively  in  this  state,  bears  to  the  total  value  of  the 
nonresident  decedent's  estate  wherever  situated.  (Gen.  Stats.  1902,  p.  613; 
Pub.  Acts  1909,  p.  1161;  Pub.  Acts  1911,  p.  1478.) 

§  464.    Transfers  Subject  to  Tax — Bates — Persons  Liable — Interest. 

Sec.  2368.  In  all  such  estates  any  property  within  the  jurisdiction  of 
this  state,  and  any  interest  therein,  whether  tangible  or  intangible,  and 
whether  belonging  to  parties  in  this  state  or  not,  which  shall  pass  by  will 
or  by  inheritance  or  by  other  statutes  to  the  parent  or  parents,  husband, 
wife,  or  lineal  descendants,  or  legally  adopted  child  of  the  deceased  person, 
shall  be  liable  to  a  tax  of  one  per  centum  of  its  value  for  the  use  of  the 
state;  and  any  such  estate  or  interest  therein  which  shall  so  pass  to  col- 
lateral kindred,  or  to  strangers  to  the  blood,  or  to  any  corporation,  voluntary 
association,  or  society,  shall  be  liable  to  a  tax  of  five  per  centum  of  its  value 
for  the  use  of  the  state.  All  executors  and  administrators  shall  be  liable 
for  all  such  taxes,  with  interest  thereon  at  the  rate  of  nine  per  centum  per 
annum  from  the  time  when  said  taxes  shall  become  payable  until  the  same 
shall  have  been  paid  as  hereinafter  directed.  (Gen.  Stats.  1902,  p.  613; 
Pub.  Acts  1905,  p.  455;  Pub.  Acts  1907,  p.  729;  Pub.  Acts  1909,  p.  1161.) 

§  465.    Nonresident  Decedents — Stocks,  Bonds  and  Securities. 

Sec.  2368a.  The  provisions  of  section  2368  of  the  general  statutes  as 
amended  by  section  one  of  chapter  63  of  the  public  acts  of  1903,  shall  apply 
to  the  following  property  belonging  to  deceased  persons,  nonresidents  of  this 
state,  which  shall  pass  by  will  or  inheritance  under  the  laws  of  any  other 
state  or  country,  and  such  property  shall  be  subject  to  the  tax  prescribed  in 
said  section:  All  real  estate  and  tangible  personal  property,  including 
moneys  on  deposit,  within  this  state;  all  intangible  personal  property, 
including  bonds,  securities,  shares  of  stock,  and  choses  in  action  the  evi- 
dences of  ownership  of  which  shall  be  actually  within  this  state;  shares  of 
the  capital  stock  or  registered  bonds  of  all  corporations  organized  and 
existing  under  the  laws  of  this  state  the  certificate  of  which  stock  or  which 
bonds  shall  be  without  this  state,  where  the  laws  of  the  state  or  country 
in  which  such  decedent  resided  shall,  at  the  time  of  his  decease,  impose  a 
succession,  inheritance,  transfer,  or  similar  tax  upon  the  shares  of  the  capi- 
tal stock  or  registered  bonds  of  all  corporations  organized  or  existing  under 
the  laws  of  such  state  or  country,  held  under  such  conditions  at  their 
decease  by  residents  of  this  state.  (Pub.  Acts  1907,  p.  729.) 


422  INHERITANCE  TAXATION. 

§  466.    Ancillary  Administration  on  Estate  of  Nonresident — Notice. 

Sec.  2368b.  Whenever  ancillary  administration  has  been  taken  out  in  this 
state  on  the  estate  of  any  nonresident  decedent  having  property  subject  to 
said  tax  under  the  provisions  of  section  one  of  this  act,  the  court  of  probate 
having  jurisdiction  shall  have  the  same  powers  in  relation  to  such  tax  and 
shall  give  the  same  notice  to  the  state  treasurer  of  all  hearings  relating 
thereto  as  is  required  in  the  case  of  the  estates  of  resident  decedents,  and 
with  the  same  right  of  appeal.  The  provisions  of  this  act  concerning  notice 
to  the  tax  commissioner  shall  not  apply  to  cases  where  ancillary  administra- 
tion has  been  taken  out  in  this  state  upon  the  estates  of  nonresident  de- 
cedents. (Pub.  Acts  1907,  p.  730.) 

§  467.    Effect  of  Failure  to  Take  Out  Ancillary  Administration. 

Sec.  2368c.  Where  ancillary  administration  has  not  been  taken  out  in 
this  state  on  the  estate  of  a  nonresident  decedent,  including  any  property 
within  the  provisions  of  section  one  of  this  act,  no  executor,  administrator, 
or  trustee  appointed  under  the  laws  of  any  other  jurisdiction  shall  assign, 
transfer,  or  take  possession  of  any  such  property  standing  in  the  name  or 
belonging  to  the  estate  of,  or  held  in  trust  for,  such  decedent  until  the  tax 
prescribed  in  section  2368  as  amended  shall  have  been  paid  to  the  state 
treasurer  or  retained  as  herein  provided.  (Pub.  Acts  1907,  p.  730.) 

§  468.    Transfer  or  Delivery  of  Stocks  and  Property — Notice. 

Sec.  2368d.  No  corporation  or  person  in  this  state  having  possession  of 
or  control  over  any  such  property,  including  any  corporation  any  shares  of 
the  capital  stock  of  which  may  be  subject  to  said  tax,  shall  deliver  or 
transfer  the  same  to  such  foreign  executor,  administrator,  or  trustee,  or  to 
the  legal  representatives  of  such  decedent,  or  upon  their  order  or  request, 
unless  notice  of  the  time  and  place  of  such  intended  delivery  or  transfer  be 
mailed  to  the  tax  commissioner  at  least  ten  days  prior  to  said  delivery  or 
transfer;  nor  shall  any  such  corporation  make  any  such  delivery  or  transfer 
without  retaining  a  sufficient  amount  of  said  property  to  pay  any  such  tax 
which  may  be  due  or  may  thereafter  become  due  under  said  section  2368  as 
amended,  unless  the  said  tax  commissioner  consents  thereto  in  writing. 
Failure  to  mail  such  notice,  or  to  allow  the  tax  commissioner  to  examine 
said  property,  or  to  retain  a  sufficient  amount  to  pay  such  tax  shall,  in  the 
absence  of  the  written  consent  of  the  tax  commissioner,  render  such  corpora- 
tion or  person  liable  to  the  payment  of  a  penalty  of  three  times  the  amount 
of  such  tax,  which  payment  shall  be  enforced  in  an  action  brought  in  the 
name  of  the  state.  (Pub.  Acts  1907,  p.  730.) 

§  469.    Transfer  or  Delivery  of  Stocks  and  Property — Assessment  by  Tax 

Commissioner. 

Sec.  23>68e.  Said  tax  commissioner,  personally  or  by  his  representative, 
may  examine  said  property  at  the  time  of  said  delivery  or  transfer,  and  it 
shall  be  his  duty,  as  speedily  as  possible  after  receiving  notice  of  said 
property  or  of  the  intended  delivery  or  transfer  thereof,  to  fix  the  valuation 
of  such  property  for  the  purpose  of  assessing  such  tax;  and  he  shall  assess 
the  tax,  and  the  amount  thereof,  payable  on  said  property.  Wherever  a  tax 


CONNECTICUT  STATUTE.  423 

ia  assessed  on  such  property  by  such  tax  commissioner  he  shall  forthwith 
lodge  with  the  state  treasurer  a  statement  showing  such  valuation  with  the 
amount  of  said  tax,  and  shall  give  notice  thereof  to  the  person  or  corpora- 
tion having  possession  of  or  control  over  said  property.  Any  administrator 
or  executor  appointed  under  the  laws  of  any  other  jurisdiction  who  ia 
aggrieved  by  the  valuation  or  assessment  affixed  as  aforesaid  by  the  tax 
commissioner,  may,  within  twenty  days  after  the  date  of  the  filing  of  the 
aforesaid  statement  with  the  treasurer,  apply  to  the  court  of  probate  in  any 
district  in  which  any  of  said  property  so  assessed  is  situated,  which  court 
shall  have  full  power  to  cause  a  revaluation  of  all  property  so  assessed  and 
a  reassessment  of  the  tax  thereon,  to  be  made  in  the  manner  provided  by 
law  for  the  appraisal  of  and  the  assessment  of  the  succession  tax  on  estates 
of  resident  decedents,  and  subject  to  the  same  right  of  appeal.  (Pub.  Acts 
1907,  p.  731.) 

§  470.    Repeal  of  Certain  Sections. 

Sec.  2368f.  Section  two  of  chapter  63  of  the  public  acts  of  1903  as 
amended  by  chapter  256  of  the  public  acts  of  1905  is  hereby  repealed.  (Pub. 
Acts  1907,  p.  731.) 

§  471.    Inventories  and.  Appraisements. 

Sec.  2369.  The  court  of  probate  having  jurisdiction  of  the  settlement 
of  any  estate  shall,  within  ten  days  after  the  filing  of  a  will  or  the  appli- 
cation for  letters  of  administration,  if  in  its  opinion  said  estate  exceeds  in 
value  said  sum  of  ten  thousand  dollars,  send  to  the  treasurer  of  the  state 
a  certificate  of  the  filing  of  such  will  or  application,  and  shall  within  ten 
days  after  the  return  and  acceptance  of  the  inventory  and  appraisal  of 
any  such  estate  send  a  certified  copy  of  said  inventory  and  appraisal  to  the 
treasurer  of  the  state,  together  with  his  certificate  as  to  the  correctness  in 
his  opinion  of  said  inventory  and  appraisal;  and  if  no  new  appraisal  is 
made  as  hereinafter  provided  the  valuation  therein  given  shall  be  taken  as 
the  basis  for  computing  said  taxes.  The  said  court  of  probate  shall,  on 
the  application  of  the  treasurer  of  the  state,  or  any  person  interested  in  the 
succession  thereof,  and  within  four  months  after  granting  administration, 
appoint  three  disinterested  persons  who  shall  view  and  appraise  such  prop- 
erty at  its  actual  value  for  the  purposes  of  said  tax,  and  make  return 
thereof  to  said  court,  and  on  the  acceptance  of  said  return,  after  public 
notice  and  hearing,  the  valuation  therein  made  shall  be  binding  upon  the 
persons  interested  and  upon  the  state.  If  any  executor  or  administrator 
shall  neglect  or  refuse  to  return  an  inventory  and  appraisal  within  the  time 
now  required  by  law,  unless  said  time  shall  have  been  extended  by  said 
court  for  cause,  after  hearing  and  such  notice  as  the  court  of  probate  may 
require,  the  said  court  of  probate  may  remove  said  executor  or  administrator, 
and  appoint  another  person  administrator  with  the  will  annexed,  or  admin- 
istrator, as  the  case  may  be.  (Gen.  Stats.  1902,  p.  614.) 

§  472.    Payment  by  Executor  to  State  Treasurer. 

Sec.  2370.  All  taxes  imposed  by  section  2368  shall  be  paid  to  the  treasurer 
of  the  state  by  the  executor  or  administrator  within  one  year  after  the 


424  INHERITANCE  TAXATION. 

qualification  of  such  executor  or  administrator,  except  as  hereinafter  pro- 
vided. If  for  any  cause  found  by  the  said  court  of  probate  to  be  reasonable, 
after  hearing  and  notice  to  the  treasurer  of  the  state,  the  executor  or 
administrator  is  unable  to  pay  said  tax  within  the  time  limited,  the  said 
court  of  probate  shall  have  power  in  its  discretion  to  extend  the  time  for 
the  payment  of  said  taxes.  (Gen.  Stats.  1902,  p.  614.) 

§  473.    Estates  .for  Tears  or  for  Life  and  Remainders. 

Sec.  2371.  Where  any  estate  or  an  annuity  is  bequeathed  or  devised  to 
any  person  for  life  or  any  limited  period,  with  remainder  over  to  another 
or  others,  and  all  the  beneficiaries  are  within  the  same  class,  the  tax  shall 
be  computed  on  and  paid  as  aforesaid  out  of  the  principal  sum  of  property 
so  bequeathed  or  devised.  Where  a  life  estate  or  an  annuity  is  bequeathed 
or  devised  to  a  parent  or  parents,  husband,  wife,  or  lineal  descendants,  or 
legally  adopted  child,  and  remainder  over  to  collateral  kindred,  or  to  strang- 
ers to  the  blood,  or  to  a  corporation,  voluntary  association,  or  society,  then 
the  tax  of  one  per  centum  shall  be  paid  out  of  the  principal  sum  or  estate  so 
bequeathed  or  devised  for  life,  or  constituting  the  fund  producing  said 
annuity,  and  the  remaining  four  per  centum  due  from  collateral  kindred  or 
strangers  to  the  blood  shall  be  paid  out  of  the  said  principal  sum  or  estate 
at  the  expiration  of  the  particular  estate  or  annuity.  And  where  a  life 
estate  or  annuity  is  bequeathed  or  devised  to  collateral  kindred  or  strang- 
ers to  the  blood,  or  to  a  corporation,  voluntary  association,  or  society,  with 
remainder  to  parent  or  parents,  husband,  wife,  or  lineal  descendants,  or 
legally  adopted  child,  a  tax  of  five  per  centum  shall  be  paid  as  aforesaid  to 
the  treasurer  of  the  state  out  of  the  principal  sum  or  estate,  or  fund  pro- 
ducing said  annuity;  on  the  termination  of  said  life  estate  or  annuity  the 
treasurer  of  the  state  shall  refund  and  pay  to  the  person  or  persons  entitled 
to  the  remainder  four-fifths  of  said  tax.  The  said  court  of  probate  shall 
send  to  the  treasurer  of  the  state  a  certificate  of  the  date  of  the  death  of 
said  life  tenant  or  annuitant  within  ten  days  after  the  same  has  come  to 
its  kno.wledge.  (Gen.  Stats.  1902,  p.  614;  Pub.  Acts  1909,  p.  1162.) 

§  474.    Sale  of  Property  to  Pay  Tax. 

Sec.  2372.  All  administrators  or  executors  shall  have  power  to  sell  so 
much  of  the  estate  as  will  enable  them  to  pay  said  tax.  In  case  specific 
estate  or  property  is  bequeathed  or  devised  to  any  person  unless  the  legatee 
or  devisee  shall  pay  to  the  executor  the  amount  of  the  tax  due  thereon  by 
the  provisions  of  section  2368,  the  executor  shall  sell  said  property  or  BO 
much  thereof  as  may  be  necessary  to  pay  said  tax  and  the  fees  and  expenses 
of  said  sale.  (Gen.  Stats.  1902,  p.  615.) 

§  475.    Application  by  Treasurer  for  Appointment  of  Administrator. 

Sec.  2373.  In  case  of  the  neglect  or  refusal  of  any  person  interested  to 
apply  for  letters  of  administration  within  thirty  days  after  the  death  of 
any  intestate,  the  treasurer  of  the  state  may  apply  to  the  court  of  probate 
having  jurisdiction  for  the  appointment  of  an  administrator;  and  there- 
upon after  hearing  and  public  notice  the  said  court  of  probate  shall  appoint 
an  administrator  of  said  estate.  (Gen.  Stats.  1902,  p.  615.) 


CONNECTICUT  STATUTE.  425 

§  476.  Jurisdiction  of  Probate  Court — State  Treasurer  to  Eepresent  State. 
Sec.  2374.  The  court  of  probate,  having  either  principal  or  ancillary 
jurisdiction  of  the  settlement  of  the  estate  of  the  decedent,  shall  have 
jurisdiction  to  hear  and  determine  all  questions  in  relation  to  said  tax  that 
may  arise  affecting  any  devise,  legacy,  or  inheritance  under  section  2368, 
subject  to  appeal  as  in  other  cases,  and  the  state  treasurer  shall  represent 
the  interests  of  the  state  in  any  such  proceeding.  (Gen.  Stats.  1902,  p.  615.) 

§  477.    Accounts  of  Executor  not  Settled  Until  Tax  Paid. 

Sec.  2375.  No  final  settlement  of  the  account  of  any  executor  or  admin- 
istrator shall  be  accepted  or  allowed  by  any  court  of  probate  unless  it  shall 
show,  and  the  judge  of  said  court  shall  find,  that  all  taxes,  imposed  by  the 
provisions  of  section  2368  upon  any  property  or  interest  belonging  to  the 
estate  to  be  settled  by  said  account,  shall  have  been  paid,  and  the  receipt 
of  the  treasurer  of  the  state  for  such  tax  shall  be  the  proper  voucher  for 
such  payment.  (Gen.  Stats.  1902,  p.  615.) 

§  478.     Transfers  to  Take  Effect  on  Death  of  Grantor. 

Sec.  2376.  All  transfers  and  alienations  by  deed,  grant,  or  other  con- 
veyance, of  real  or  personal  estate,  to  take  effect  upon  the  death  of  the 
grantor  or  donor,  shall  be  testamentary  gifts  within  the  taxation  purposes 
of  section  2368,  and  all  property  so  conveyed  shall  be  conveyed  subject  to 
the  tax  imposed  by  said  section,  and  upon  the  same  principles  and  per- 
centages regarding  the  degree  of  relationship;  and  the  grantee  or  donee  of 
any  such  estate  shall,  upon  receipt  thereof,  pay  to  the  treasurer  of  the  state 
a  tax  of  five  per  centum,  or  one  per  centum  of  the  value  of  such  property, 
according  to  his  aforesaid  degree  of  relationship  to  the  grantor  or  donor, 
and  the  executor  or  administrator  of  any  such  grantor  or  donor  shall  at 
once  communicate  to  the  treasurer  of  the  state  his  knowledge  of  any  and 
all  such  conveyances.  No  executor,  administrator,  or  bailee  having  pos- 
session of  any  deed,  grant,  conveyance,  or  other  evidence  of  such  transfer 
or  alienation  shall  deliver  the  same  or  anything  connected  with  the  subject 
of  such  transfer  or  alienation  until  the  tax  aforesaid  has  been  paid  to  the 
treasurer  of  the  state.  (Gen.  Stats.  1902,  p.  615;  Pub.  Acts  1909,  p.  1162.) 

§  479.    Powers  of  Appointment. 

Sec.  2376a.  Whenever  any  person,  or  corporation  shall  exercise  the  power 
of  appointment  derived  from  any  disposition  of  property  made  either  before 
or  after  the  passage  of  this  act,  all  property  under  such  appointment,  when 
made,  shall  be  deemed  to  be  taxable  under  the  laws  of  this  state  in  the 
same  manner  as  though  the  property  to  which  such  appointment  relates 
belonged  absolutely  to  the  donee  of  such  power  and  had  been  bequeathed  or 
devised  by  such  donee  by  will;  and  whenever  any  person  or  corporation 
possessing  such  power  of  appointment  so  derived  shall  fail  or  omit  to  exer- 
cise the  same  within  the  time  provided  therefor,  in  whole  or  in  part,  the 
passing  of  such  property  taxable  under  the  laws  of  this  state  shall  be  deemed 
to  take  place  to  the  extent  of  such  omission  or  failure,  in  the  same  manner 
as  though  the  persons  or  corporations  thereby  becoming  entitled  to  the 


426  INHERITANCE  TAXATION. 

possession  or  enjoyment  of  the  property  to  which  such  power  related  had 
succeeded  thereto  by  a  will  of  the  donee  of  the  power  failing  to  exercise 
such  power,  taking  effect  at  the  time  of  such  omission  or  failure.  (Gen. 
Stats.  1902,  p.  615;  Pub.  Acts  1909,  p.  1163.) 

§  480.    Time  When  Statute  Takes  Effect. 

Sec.  2377.  Sections  2367  to  2376,  both  inclusive,  shall  not  apply  to  the 
estates  of  any  persons  deceased  before  June  first,  1897;  but  the  estates  of 
all  persons  who  died  before  July  first,  1893,  and  on  or  after  August  first, 
1889,  shall  be  subject  to  the  provisions  of  chapter  180  of  the  public  acts 
of  1889;  and  the  estates  of  all  persons  who  died  before  June  first,  1897,  and 
on  or  after  July  first,  1893,  shall  be  subject  to  the  provisions  of  said  chapter 
180  as  modified  by  chapter  257  of  the  public  acts  of  1893.  Said  chapters 
180  and  257  are  continued  in  force  for  the  purposes  in  this  section  expressed. 
(Gen.  Stats.  1902,  p.  616.) 


DELAWARE  STATUTE.  427 


CHAPTER  XXVII. 
DELAWARE  STATUTE. 

(Laws  of  1869;  Laws  of  1883;  Laws  of  1909,  pp.  514-520.) 

§  481.  Transfers  Subject  to  Tax — Rates — Exemptions. 

§  482.  Liability  for  Payment  of  Tax — Exemptions. 

§  483.  Inventory,  Appraisement  and  Valuation — Lien — Collection. 

§  484.  Liability  of  Executor  and  Sureties. 

§  485.  Payment  by  Executor  to  Register  of  Wills. 

§  486.  Receipts  for  Payment  of  Tax. 

§  487.  Duty  of  Register  of  Wills  to  Pay  Over  Money  and  Make  Returns — 
Commissions. 

§  481.     Transfers  Subject  to  Tax — Bates — Exemptions. 

Sec.  1.  All  property  within  the  jurisdiction  of  this  state,  real  and  per- 
sonal, and  every  estate  and  interest  ^therein,  whether  belonging  to  inhabi- 
tants of  this  state  or  not,  which  shall,  after  the  approval  of  this  act,  pass 
by  will,  or  by  the  intestate  laws  of  this  state,  or  by  deed,  grant,  or  gift 
(except  in  cases  of  a  bona  fide  purchase  for  full  consideration  in  money 
or  money's  worth)  made  or  intended  to  take  effect  in  possession  or  enjoy- 
ment after  the  death  of  the  grantor,  or  donor,  to  any  person,  or  persons, 
bodies  politic,  or  corporate,  in  trust  or  otherwise,  other  than  to  or  for  the 
use  of  the  father,  mother,  grandfather,  grandmother,  wife,  husband,  child, 
or  children  by  birth  or  legal  adoption,  or  lineal  descendant,  of  the  grantor, 
donor,  devisor,  or  intestate  (hereinafter  called  the  decedent)  shall  be  sub- 
ject to  taxation  and  pay  the  following  taxes,  that  is  to  say: — where  the  suc- 
cessor shall  be  a  brother  or  sister,  or  a  descendant  of  a  brother  or  sister 
of  the  decedent,  a  tax  at  the  rate  of  one  per  centum  upon  the  value  thereof; 
where  the  successor  shall  be  a  brother  or  sister  of  the  father  or  mother,  or 
a  descendant  of  a  brother  or  sister  of  the  father  or  mother  of  the  decedent, 
a  tax  at  the  rate  of  two  per  centum  upon  the  value  thereof;  where  the 
successor  shall  be  a  brother  or  sister  of  the  grandfather  or  grandmother,  or 
a  descendant  of  the  brother  or  sister  of  the  grandfather  or  grandmother  of 
the  decedent,  a  tax  at  the  rate  of  three  per  centum  upon  the  value  thereof; 
where  the  successor  shall  be  in  any  other  degree  of  collateral  consanguinity 
to  the  decedent,  than  is  hereinbefore  described,  or  shall  be  a  stranger  in 
blood  to  him,  a  tax  at  the  rate  of  five  per  centum  of  the  value  thereof; 
provided  that  if  the  value  of  the  property,  estate  or  interest  therein, 
passing  as  aforesaid  to  any  successor,  shall  not  exceed  the  sum  of  five  hun- 
dred dollars  ($500),  then  and  in  such  event  the  successor  shall  be  entitled  to 
receive  the  same,  free  and  exempt  from  any  tax  imposed  by  the  provisions 
of  this  act;  and  provided  further  that  nothing  in  this  act  shall  be  con- 
strued to  impose  any  tax  upon  any  property,  estate  or  interest  therein  pass- 
ing to  or  for  the  use,  or  in  trust  for,  charitable,  educational  or  religious 
societies  or  institutions,  or  cities  or  towns  for  public  improvement,  or  to 
school  districts  or  library  commissions.  (Laws  1909,  p.  514.) 


429  INHERITANCE  TAXATION. 

§  482.    Liability  for  Payment  of  Tax — Exemptions. 

Sec.  2.  Every  pecuniary  legacy,  and  every  distributive  snare  of  an 
estate  payable  in  this  state,  shall  be  subject  to  the  tax  prescribed  in  section 
1  of  this  act,  and  every  executor  or  administrator  to  whom  administration 
may  be  granted,  before  he  pays  any  pecuniary  legacy,  or  distributes  the 
shares  of  any  estate  liable  to  the  tax  imposed  by  the  preceding  section,  shall 
pay  to  the  register  of  wills  of  the  proper  county,  for  the  use  of  the  state, 
that  per  centum  of  all  moneys  he  may  hold  for  distribution  among  the  dis- 
tributees or  legatees,  as  is  prescribed  in  the  preceding  section.  The 
tax  aforesaid  shall  be  paid  by  such  executor  or  administrator  within 
thirteen  months  from  the  granting  of  letters  testamentary,  or  of  adminis- 
tration, and  any  executor  or  administrator  neglecting  or  refusing  to  pay 
the  said  tax  shall  not  be  allowed  by  the  register  any  commissions  on  the 
estate,  and  shall  be  liable,  on  his  official  bond,  for  the  amount  of  the  tax 
due  the  state  on  the  funds  in  his  hands.  The  exemptions  prescribed  in  sec- 
tion 1  of  this  act  shall  apply  to  all  legacies  and  distributive  shares  of  estate. 
(Laws  1909,  p.  515.) 

§  483.    Inventory,  Appraisement  and  Valuation — Lien — Collection. 

Sec.  3.  The  estate  or  interest  of  every  person,  body  politic  or  corporate, 
in  all  real  and  personal  property,  taxable  under  the  provisions  of  section  1 
of  this  act,  whether  in  remainder,  reversion  or  otherwise,  or  in  trust  or 
otherwise,  or  conditioned  upon  the  happening  of  a  contingency  or  dependent 
upon  the  exercise  of  a  discretion,  or  subject  to  a  power  of  appointment,  or 
otherwise,  and  all  annuities  taxable  as  aforesaid,  shall  be  valued  by  the 
register  of  wills  for  the  purpose  of  determining  the  amount  of  tax  to  be 
collected  from  such  person,  body  politic,  or  corporate,  under  the  provisions 
of  this  act.  Where  the  property  shall  pass  in  trust  or  otherwise  to  one  or 
more  persons,  bodies  politic  or  corporate,  for  a  term  of  years  or  greater  estate 
or  interest,  and  with  remainder  or  reversion  to  one  or  more  other  persons, 
bodies  politic,  or  corporate,  the  estate  or  interest  of  each  beneficiary  shall 
be  valued  separately.  The  register  of  wills  referred  to  in  this  section  shall 
be  the  register  of  wills  of  the  county  where  letters  testamentary  or  of 
administration,  have  been  granted  on  the  estate  of  the  donor,  grantor, 
devisor  or  intestate  from  whom  the  property  aforesaid  shall  have  passed  as 
set  forth  in  section  1  of  this  act,  but  if  no  such  letters  have  been  granted 
then  the  said  register  shall  be  the  register  of  wills  of  the  county  in  which 
such  property  is,  or  is  situated.  Such  valuation  shall  be  made  within 
thirteen  months  of  the  death  of  the  donor,  grantor,  devisor,  or  intestate 
aforesaid.  The  register  shall  give  one  week's  notice  to  the  parties  in  inter- 
est by  posting  the  same  in  his  office  or  in  some  other  manner  as  he  shall 
deem  proper,  of  the  time  when  he  will  hear  any  of  said  parties  relative  to 
such  valuation.  The  said  register  shall  have  power  to  summon  witnesses 
and  take  testimony  relative  to  the  valuation  aforesaid. 

In  all  cases  there  shall  be  an  appeal  from  the  determination  of  the  regis- 
ter as  to  the  amount  of  taxes  to  be  paid  under  the  provisions  of  this  act, 
to  the  orphans  court  of  the  county  of  said  register;  the  said  appeal  must 
be  taken  to  the  term  of  the  said  orphans  court  next  following  the  deter- 


DELAWARE  STATUTE.  429 

mination  of  the  register  as  to  the  valuation  aforesaid.  The  decisions  of  the 
said  orphans  court  shall  be  final. 

The  costs  of  the  appeal  shall  in  all  cases  be  paid  by  the  appellant  and 
shall  be  taxed  by  the  court  against  said  appellant.  It  shall  be  the  duty 
of  the  register  to  notify  the  attorney  general  or  his  deputy  for  the  county 
of  said  register's  jurisdiction,  whenever  any  such  appeal  shall  be  taken  and 
it  shall  be  the  duty  of  the  attorney  general  to  represent  the  state  in  person 
or  by  one  of  his  deputies  in  the  hearing  on  the  appeal. 

Every  estate  and  interest  in  real  and  personal  property  shall  be  charged 
with  a  lien  for  the  amount  of  the  taxes  for  which  such  estate  or  interest 
is  liable  under  the  provisions  of  this  act,  whether  such  estate  or  interest  be 
held  at  the  time  the  tax  is  determined,  by  the  first  taker  thereof,  his  heirs, 
assigns  or  any  other  persons,  and  such  a  lien  shall  not  be  discharged  until 
the  tax  shall  be  paid  in  full.  It  shall  be  the  duty  of  the  executor  or  admin- 
istrator of  the  donor,  grantor,  devisor  or  intestate  from  whom  any  property 
shall  pass  as  set  forth  in  section  1  of  this  act,  to  collect  the  taxes  deter- 
mined in  accordance  with  the  provisions  of  this  section,  to  be  due  and 
payable  on  account  of  said  property  or  any  estate  or  interest  therein,  from 
the  parties  liable  to  pay  said  tax,  or  their  legal  representative.  Such  col- 
lection shall  be  made  within  thirty  days  after  the  amount  of  the  tax  has 
been  determined  in  accordance  with  the  provisions  of  this  section,  provided 
that  the  right  of  possession  or  enjoyment  of  the  property,  estate  or  interest 
taxed,  shall  then  have  accrued,  otherwise  such  collection  shall  be  made 
within  thirty  days  after  such  right  of  possession  or  enjoyment  shall  accrue. 
If  there  shall  be  no  executor  or  administrator  as  aforesaid  at  such  time,  it 
shall  be  the  duty  of  the  register  of  wills  to  appoint  some  suitable  person 
as  administrator.  If  the  owner  of  any  estate  or  interest  subject  to  the 
payment  of  a  tax  under  the  provisions  of  this  act  shall  refuse  or  neglect 
to  pay  said  tax  to  the  executor  or  administrator  aforesaid,  within  the  time 
prescribed  for  the  collection  thereof  as  hereinbefore  set  forth,  then  the 
executor,  or  administrator  aforesaid  shall  apply  to  the  orphans  court  of 
said  county,  and  it  shall  be  the  duty  of  said  court  to  grant  an  order  author- 
izing and  directing  said  executor  or  administrator  to  sell  for  cash,  upon  the 
usual  notice,  the  said  estate  or  interest,  or  so  much  thereof  as  may  be  neces- 
sary to  pay  said  tax  and  all  expenses  of  such  sale  and  the  commissions  of 
the  executor  or  administrator  thereon.  The  said  order,  with  the  proceed- 
ings of  the  executor  or  administrator  therein,  shall  be  returned  to  the  next 
term  of  the  said  orphans  court,  and  if  the  return  aforesaid  be  approved  by 
the  court,  the  executor  or  administrator  making  such  sale  shall  execute  and 
deliver  to  the  purchaser  a  deed  for  so  much  of  said  estate  or  interest  as 
was  sold,  and  such  deed  shall  vest  in  the  purchaser  the  title  thereto. 

Whenever  any  legacy  taxable  under  the  provisions  of  this  act,  is  charged 
upon  land,  the  holder  of  said  land  shall  pay  the  same  to  the  executor  or 
administrator  in  order  that  said  executor  or  administrator  may  pay  the 
taxes  due  thereon. 

In  case  any  property  subject  to  the  provisions  of  this  act  shall  be  held  in 
trust,  it  shall  be  the  duty  of  the  trustees  to  pay  the  taxes  imposed  under 
this  act,  to  the  executor  or  administrator  of  the  donor,  grantor  or  devisor 


430  INHERITANCE  TAXATION. 

from  whom  the  property  shall  have  passed  as  set  forth  in  section  1  hereof, 
and  if  there  shall  be  no  such  executor  or  administrator  then  said  trustees 
shall  pay  the  said  taxes  to  the  register  of  wills  of  the  proper  county.  It 
shall  be  the  duty  of  every  executor  or  administrator  within  two  months  after 
the  granting  of  letters  testamentary  or  administration,  to  file  in  the  office 
of  the  register  of  wills  of  the  county  in  which  such  letters  have  been 
granted,  a  statement  in  writing,  setting  forth  a  general  description  of  every 
parcel  of  real  estate  in  this  state  of  which  his  decedent  died  seised,  and 
the  name  of  each  party  entitled  to  any  estate  or  interest  in  any  parcel  of 
said  real  estate  and  the  relationship,  if  any,  of  said  party,  to  the  decedent. 
Said  statement  shall  be  supported  by  the  oath  or  affirmation  of  said  executor 
or  administrator  that  the  facts  therein  contained  are  true  according  te  his 
best  information  and  belief.  Every  such  statement  shall  be  recorded  by  the 
register  of  wills  in  a  separate  book  to  be  kept  by  him  for  that  purpose  and 
which  shall  be  known  as  the  "Inheritance  and  Succession  Docket,"  and  shall 
be  duly  indexed.  Whenever  any  parcel  of  real  property  or  any  estate  or 
interest  therein  described  in  the  statement  of  the  executor  or  administrator 
aforesaid,  shall  be  subject  to  tax  under  the  provisions  of  this  act,  the  regis- 
ter of  wills  shall  make  an  entry  in  the  docket  aforesaid,  of  the  amount  of 
the  tax  determined  by  him  as  hereinbefore  set  forth,  to  be  against  said 
parcel  and  every  estate  and  interest  therein,  and  in  the  event  of  an  appeal 
to  the  orphans  court  as  aforesaid,  shall  further  set  down  in  said  docket  the 
amount  of  the  tax  aforesaid  as  fixed  by  said  court.  When  any  tax  as  afore- 
said shall  be  paid  and  discharged,  the  said  register  shall  make  a  note  thereof 
in  the  said  docket.  It  shall  be  the  duty  of  the  state  treasurer  from  time 
to  time  to  examine  every  such  docket  as  aforesaid,  and  to  notify  the 
attorney  general  of  any  failure  on  the  part  of  any  register  of  wills  or  of 
any  executor  or  administrator  to  perform  the  duties  imposed  upon  them  by 
this  act.  The  attorney  general  shall  thereupon  take  proper  proceedings 
against  the  party  or  parties  delinquent.  All  taxes  imposed  under  the  pro- 
visions of  this  act  shall  be  for  the  use  of  the  state. 

If  for  any  cause  there  shall  be  no  executor  or  administrator  to  receive  a 
tax  imposed  under  the  provisions  of  this  act,  the  party  liable  for  said  tax 
shall  have  the  right  to  pay  the  same  direct  to  the  register  of  wills  of  the 
proper  county  and  such  payment  shall  operate  as  a  discharge  of  said  tax. 
(Laws  1909,  p.  515.) 

§  484.    Liability  of  Executor  and  Sureties. 

Sec.  4.  The  bond  of  an  executor  or  administrator  shall  be  liable  for  all 
money  he  may  receive  for  taxes,  or  for  the  proceeds  of  the  sale  of  any  estate 
or  interest  received  by  him  under  this  act,  and  if  any  executor  or  adminis- 
trator shall  fail  to  perform  any  of  the  duties  imposed  upon  him  under  the 
provisions  of  this  act,  the  register  of  wills  granting  the  letters  of  admin- 
istration may  revoke  the  same,  and  his  bond  shall  be  liable,  and  the  same 
proceedings  shall  be  had  as  if  his  administration  had  been  revoked  for  any 
other  cause.  The  powers  and  duties  of  an  administrator  de  bonis  non,  or 
de  bonis  non  with  the  will  annexed,  shall  be  the  same,  under  this  act,  as 
an  executor  or  administrator,  and  he  shall  be  subject  to  the  same  liabilities. 
(Laws  1909,  p.  519.) 


DELAWARE  STATUTE.  431 

§  485.    Payment  by  Executor  to  Register  of  Wills. 

Sec.  5.  Every  executor  or  administrator  collecting  the  tax  aforesaid  by 
sale  of  any  estate  or  interest  as  aforesaid,  shall  pay  the  tax  so  collected  to 
the  register  of  wills  of  the  proper  county.  (Laws  1909,  p.  519.) 

§  486.    Receipts  for  Payment  of  Tax. 

Sec.  6.  Every  register  of  wills  receiving  any  tax  under  the  provisions  of 
this  act,  shall  give  the  person  paying  the  same,  duplicate  receipts  therefor, 
one  of  which  shall  be  forwarded  by  the  person  so  paying  as  aforesaid,  to 
the  state  treasurer,  to  be  by  him  preserved,  and  either  of  said  duplicate 
receipts  shall  be  evidence  in  suits  upon  the  bond  of  said  register  to  recover 
the  taxes  so  by  him  received.  (Laws  1909,  p.  519.) 

§  487.  Duty  of  Register  of  Wills  to  Pay  Over  Money  and  Make  Returns — 
Commissions. 

Sec.  7.  It  shall  be  the  duty  of  the  several  registers  of  wills  in  the  state, 
to  make  returns,  under  oath  to  the  state  treasurer,  on  the  first  days  of 
January,  April,  July  and  October,  in  each  year,  or  within  thirty  days  there- 
after, of  all  sums  of  money  received  by  them  as  taxes  under  the  provisions 
of  this  act,  the  first  return  to  be  made  on  the  first  day  of  July  next  after 
the  passage  of  this  act,  and  to  pay  «ver  to  said  state  treasurer  the  amounts 
so  by  them  received  respectively,  at  the  time  of  making  such  returns,  for 
which  they  shall  be  allowed  a  commission  of  one-half  of  one  per  centum  on 
the  amount  so  paid  over,  and  if  any  register  of  wills  shall  fail  to  pay  over, 
as  required  by  this  section,  the  state  treasurer  shall  give  notice  to 'the  attor- 
ney general  of  the  state,  whose  duty  it  shall  be  to  institute  suit  on  the 
official  bond  of  such  register  of  wills,  for  the  use  of  the  state,  to  recover 
the  amount  due  from  such  register  of  wills,  and  in  such  suit  the  amount 
appearing  to  be  due,  with  interest  thereon,  and  costs,  shall  be  recovered, 
which  recovery  shall  be  evidence  of  misbehavior  in  office,  and  upon  convic- 
tion thereof  such  register  of  wills  shall  be  removed  from  office. 

The  official  bond  of  every  register  of  wills  of  this  state,  now  or  hereafter 
appointed,  shall  be  deemed  and  held  to  embrace  and  include  the  faithful 
performance  by  such  register  of  all  and  every  the  duties  imposed  upon  him 
by  ftiia  act.  Approved  M^rch  26,  A.  D.  1909.  (Laws  1909,  p.  519.) 


432  INHERITANCE  TAXATION. 


CHAPTER  XXVIII. 

IDAHO  STATUTE. 

(Laws  of  1907,  pp.  558-571.) 

§  488.  Transfers  Subject  to  Tax — Market  Value — Lien. 

§  489.  Power  of  Appointment. 

§  490.  Classification  of  Beneficiaries— Tax  Rates  on  Estates  Under  $25,000. 

§  491.  Bates  of  Taxation  on  Estates  Over  $25,000. 

§  492.  Exemptions  from  Taxation. 

§  493.  Estates  for  Years  or  Life — Remainders   and  Contingent  Interests. 

§  494.  Bequests  to  Executor  or  Trustee. 

§  495.  Time  of  Payment  of  Tax — Interest  and  Discount. 

§  496.  Collection  of  Tax  by  Executor  or  Trustee. 

§  497.  Sale  of  Property  to  Pay  Tax. 

§  498.  Payment  to  County  Treasurer — Duty  of  Controller — Receipts. 

§  499.  Refunding  Excess  Payments. 

§  500.  Transfer  or  Delivery  of  Stocks,  Securities,  Deposits — Notice  Thereof. 

§  501.  Appraisers  and  Appraisement. 

§  502.  Appraiser  Taking  Other  Than  Regular  Fees — Penalty  Therefor. 

§  503.  Nonresidents — Jurisdiction  of  Court. 

§  504.  Citation  to  Delinquent  Taxpayer. 

§  504a.  Proceedings  by  District  Attorney  Against  Delinquent. 

§  505.  Entries,  Records  and  Reports  of  County  Clerk. 

§  506.  Costs  of  Proceedings  Against  Delinquent. 

§  507.  Payment  by  County  to  State  Treasurer. 

§  508.  Furnishing  Copy  of  Receipts  to  Persons  Applying  Therefor. 

§  500.  Refusal  of  Officers  to  Discharge  Duties — Penalty  Therefor. 

§  510.  Definitions  of  Words  Used  in  Statute. 

§  511.  Enforcement  of  Lien  of  Tax — Quieting  Title. 

§  512.  Repeal  of  Conflicting  Acts. 

§  488.     Transfers  Subject  to  Tax — Market  Value — Lien  of  Tax. 

Section  1.  All  property  which  shall  pass,  by  will  or  by  the  intestate 
laws  of  this  state,  from  any  person  who  may  die  seised  or  possessed  of  the 
same  while  a  resident  of  this  state,  or  if  such  decedent  was  not  a  resident 
of  this  state  at  the  time  of  death,  which  property,  or  any  part  thereof,  shall 
be  within  this  state,  or  any  interest  therein,  or  income  therefrom,  which 
shall  be  transferred  by  deed,  grant,  sale,  or  gift,  made  ia  contemplation  of 
the  death  of  the  grantor,  vendor  or  bargainer,  or  intended  to  take  effect  in 
possession  or  enjoyment  after  such  death,  to  any  person  or  persons,  or  to 
any  body  politic  or  corporate,  in  trust  or  otherwise,  or  by  reason  whereof 
any  person  or  body  politic  or  corporate  shall  become  beneficially  entitled, 
in  possession  or  expectancy,  to  any  property,  or  to  the  income  thereof,  shall 
be  and  is  subject  to  a  tax  hereinafter  provided  for,  to  be  paid  to  the  treas- 
urer of  the  proper  county,  as  hereinafter  directed,  for  the  benefit  of  the 


IDAHO   STATUm  433 

general  fund  of  this  state,  to  be  used  for  all  the  purposes  for  which  said 
fund  is  available.  And  the  county  treasurer  shall,  upon  the  receipt  of  said 
tax,  pay  the  same  to  the  state  treasurer  and  take  duplicate  receipts  thereof, 
one  of  which  the  county  treasurer  shall  retain,  and  transmit  the  other  to  the 
state  auditor,  and  receive  from  him  credit  for  the  amount  thereof  on  his 
account;  and  such  tax  shall  be  and  remain  a  lien  upon  the  property  passed 
or  transferred  until  paid  and  the  person  to  whom  the  property  passes  or  is 
transferred  and  all  administrators,  executors,  and  trustees  of  every  estate 
so  transferred  or  passed  shall  be  liable  for  any  and  all  such  taxes  until  the 
same  shall  have  been  paid  as  hereinafter  directed.  The  tax  so  imposed  shall 
be  upon  the  market  value  of  such  property  at  the  rates  hereinafter  pre- 
scribed and  only  upon  the  excess  over  the  exemptions  hereinafter  granted. 
(Laws  1907,  p.  558.) 

§  489.    Power  of  Appointment. 

Sec.  2.  Whenever  any  person  or  corporation  shall  exercise  a  power  of 
appointment  derived  from  any  disposition  of  property  made  either  before 
or  after  the  passage  of  this  act,  such  appointment  when  made  shall  be 
deemed  a  transfer  taxable  under  the  provisions  of  this  act  in  the  same 
manner  as  though  the  property  to  which  such  appointment  relates  belonged 
absolutely  to  the  donee  of  such  power  and  had  been  bequeathed  or  devised 
by  such  donee  by  will;  and  whenever  any  person  or  corporation  possessing 
such  a  power  of  appointment  so  derived  shall  omit  or  fail  to  exercise  the 
same  within  the  time  provided  therefor,  in  whole  or  in  part,  a  transfer  tax- 
able under  the  provisions  of  this  act  shall  be  deemed  to  take  place  to  the 
extent  of  such  omission  or  failure,  in  the  same  manner  as  though  the  persons 
or  corporations  thereby  becoming  entitled  to  the  possession  or  enjoyment  of 
the  property  to  which  such  power  related  had  succeeded  thereto  by  a  will 
of  the  donee  of  the  power  failing  to  exercise  such  power,  taking  effect  at 
the  time  of  such  omission  or  failure.  (Laws  1907,  p.  559.) 

§  490.  Classification  of  Beneficiaries — Tax  Bates  on  Estates  Under  $25,000. 
Sec.  3.  When  the  property  or  any  beneficial  interest  therein  so  passed  or 
transferred  exceeds  in  value  the  exemption  hereinafter  specified  and  shall 
not  exceed  in  value  twenty-five  thousand  dollars  the  tax  hereby  imposed 
shall  be: 

(1)  Where  the  person  or  persons   entitled  to  any  beneficial  interest  in 
such  property  shall  be  the  husband,  wife,  lineal  issue,  lineal  ancestor  of  the 
decedent  or  any  child  adopted  as  such  in  conformity  with  the  laws  of  this 
state,  or  any  child  to  whom  such  decedent  for  not  less  than  ten  years  prior 
to  such  transfer  stood  in  the  mutually  acknowledged  relation  of  a  parent, 
provided,  however,  such  relationship  began  at  or  before  the  child's  fifteenth 
birthday,  and  was  continuous  for  said  ten  years  thereafter,  or  any  lineal 
issue  of  such  adopted  or  mutually  acknowledged  child,  at  the  rate  of  one 
per  centum  of  the  clear  value  of  such  interest  in  such  property. 

(2)  Where  the  person  or  persons  entitled  to  any  beneficial  interest  in  such 
property  shall  be  the  brother  or  sister  or  a  descendant  of  a  brother  or  sister 
of  the  decedent,  a  wife  or  widow  of  a  son,  or  the  husband  of  a  daughter  of 

28 


434  INHERITANCE  TAXATION. 

the  decedent,  at  the  rate  of  one  and  one-half  per  centum  of  the  clear  value 
of  such  interest  in  such  property. 

(3)  Where  the  person  or  persons  entitled  to  any  beneficial  interest  in 
such  property  shall  be  the  brother  or  sister  of  the  father  or  mother  or  a 
descendant  of  a  brother  or  sister  of  the  father  or  mother  of  the  decedent, 
at  the  rate  of  three  per  centum  of  the  clear  value  of  such  interest  in  such 
property. 

(4)  Where  the  person  or  persons  entitled  to  any  beneficial  interests  in  such 
property  shall  be  the  brother  or  sister  of  the  grandfather  or  grandmother 
or  a  descendant  of  the  brother  or  sister  of  the  grandfather  or  grandmother 
of  the  decedent,  at  the  rate  of  four  per  centum  of  the  clear  value  of  such 
interest  in  such  property. 

(5)  Where  the  person   or  persons   entitled  to  any  beneficial  interest  in 
such  property  shall  be  in  any  other  degree  of  collateral  consanguinity  than 
is  hereinbefore  stated,  or  shall  be  a  stranger  in  blood  to  the  decedent,  or 
shall  be  a  body  politic  or  corporate,  at  the  rate  of  five  per  centum  of  the 
clear  value  of  such  interest  in  such  property.     (Laws  1907,  p.  559.) 

§  491.    Bates  of  Taxation  on  Estates  Over  $25,000. 

Sec.  4.  The  foregoing  rates  in  section  three  are  for  convenience  termed 
the  primary  rates.  When  the  market  value  of  such  property  or  interest  ex- 
ceeds twenty-five  thousand  dollars,  the  rates  of  tax  upon  such  excess  shall 
be  as  follows: 

(1)  Upon  all  in  excess  of  $25,000  and  up  to  $50,000,  one  and  one-half 
times  the  primary  rates. 

(2)  Upon  all  in  excess  of  $50,000  and  up  to  $100,000,  two  times  the  pri- 
mary rates. 

(3)  Upon  all  in  excess  of  $100,000  and  up  to  $5€0,000,  two  and  one-half 
times  the  primary  rates. 

(4)  Upon  all  in  excess  of  $500,000,  three  times  the  primary  rates.     (Laws 
1907,  p.  560.) 

§  492.     Exemptions  from  Taxation. 

Sec.  5.     The  following  exemptions  from  the  tax  are  hereby  allowed: 

(1)  All  property  transferred  to  societies,  corporations,   and  institutions 
now  or  hereafter  exempted  by  law  from  taxation,  or  to  any  public  corpora- 
tion or  to  any  society,  corporation,  institution,  or  association  of  persons  en- 
gaged in  or  devoted  to  any  charitable,  benevolent,  educational,  public  or 
other  like  work  (pecuniary  profit  not  being  its  object  or  purpose),  or  to  any 
person,  society,  corporation,  institution,  or  association  of  persons  in  trust 
for  or  to  be  devoted  to  any  charitable,  benevolent,  educational,  or  public 
purpose,  by  reason  whereof  any  such  person  or  corporation  shall  become 
beneficially  entitled,  in  possession  or  expectancy,  to  any  such  property  or  to 
the  income  thereof  shall  be  exempt. 

(2)  Property  of  the  clear  value  of  ten  thousand  dollars  transferred  to  the 
widow  or  to  a  minor  child  of  the  decedent,  and  of  four  thousand  dollars 
transferred  to  each  of  the  other  persons  described  in  the  first  subdivision 
of  section  3  shall  be  exempt. 


IDAHO   STATUTE.  435 

(3)  Property  of  the  clear  value  of  two  thousand  dollars  transferred  to 
each  of  the  persons  described  in  the  second  subdivision  of  section  2  shall 
be  exempt. 

(4)  Property  of  the   clear  value   of   one   thousand   five   hundred   dollars 
transferred  to  each  of  the  persons  described  in  the  third  subdivision  of  sec- 
tion 3  shall  be  exempt. 

(5)  Property  of  the  clear  value  of  one  thousand  dollars  transferred  to 
each  of  the  persons  described  in  the  fourth  subdivision  of  section  3  shall  be 
exempt. 

(6)  Property  of  the  clear  value  of  five  hundred  dollars  transferred  to  each 
of  the  persons  and  corporations  described  in  the  fifth  subdivision  of  section 
3  shall  be  exempt.     (Laws  1907,  p.  561.) 

§  493.    Estates  for  Years  or  Life — Remainders  and  Contingent  Interests. 

Sec.  6.  When  any  grant,  gift,  legacy  or  succession  upon  which  a  tax  is 
imposed  by  section  one  of  this  act  shall  be  an  estate,  income  or  interest  for 
a  term  of  years,  or  for  life,  or  determinable  upon  any  future  or  contingent 
event,  or  shall  be  a  remainder,  reversion  or  other  expectancy,  real  or  per- 
sonal, the  entire  property  or  fund  by  which  such  estate,  income  or  interest 
is  supported,  or  of  which  it  is  a  part,  shall  be  appraised  immediately  after 
the  death  of  the  decedent,  and  the  market  value  thereof  determined,  in  the 
manner  provided  in  section  fourteen  of  this  act,  and  the  tax  prescribed  by 
this  act  shall  be  immediately  due  and  payable  to  the  treasurer  of  the  proper 
county,  and,  together  with  the  interest  thereon,  shall  be  and  remain  a  lien 
on  said  property  until  the  same  is  paid;  provided,  that  the  person  or  persons, 
or  body  politic  or  corporate,  beneficially  interested  in  the  property  charge- 
able with  said  tax,  may  elect  not  to  pay  the  same  until  they  shall  come  into 
the  actual  possession  or  enjoyment  of  such  property,  and  in  that  case  such 
person  or  persons,  or  body  politic  or  corporate,  shall  execute  a  bond  to  the 
people  of  the  state  of  Idaho,  in  a  penalty  of  twice  the  amount  of  the  tax 
arising  upon  personal  estate,  with  such  sureties  as  the  said  probate  court 
may  approve,  conditioned  for  the  payment  of  said  tax,  and  interest  thereon, 
at  such  time  or  period  as  they  or  their  representatives  may  come  into  the 
actual  possession  or  enjoyment  of  such  property,  which  bond  shall  be  filed 
in  the  office  of  the  county  clerk  of  the  proper  county;  provided,  further, 
that  such  person  shall  make  a  full  and  verified  return  of  such  property  to 
said  court,  and  file  the  same  in  the  office  of  the  county  recorder  within  one 
year  from  the  death  of  the  decedent,  and  within  that  period  enter  into  such 
security,  and  renew  the  same  every  five  years.  (Laws  1907,  p.  561.) 

§  494.    Bequests  to  Executor  or  Trustee. 

Sec.  7.  Whenever  a  decedent  appoints  or  names  one  or  more  executors 
or  trustees,  and  makes  a  bequest  or  devise  of  property  to  them  in  lieu  of  com- 
missions or  allowances,  which  otherwise  would  be  liable  to  said  tax,  or 
appoints  them  his  residuary  legatees,  and  said  bequest,  devises,  or  residuary 
legacies  exceed  what  would  be  a  reasonable  compensation  for  their  services, 
such  excess  over  and  above  the  exemptions  herein  provided  for  shall  be 
liable  to  said  tax;  and  the  superior  court  in  which  the  probate  proceedings 
are  pending  shall  fix  the  compensation.  (Laws  1907,  p.  562.) 


436  INHERITANCE  TAXATION. 

§  495.     Time  of  Payment  of  Tax — Interest  and  Discount. 

Sec.  8.  All  taxes  imposed  by  this  act,  except  as  hereinafter  provided, 
shall  be  due  and  payable  at  the  death  of  the  person  rendering  such  prop- 
erty subject  to  such  taxation,  and  interest,  at  the  same  rate  as  is  now 
provided  by  law  for  delinquent  taxes,  shall  be  charged  and  collected  thereon 
for  such  time  as  said  tax  is  not  paid;  provided,  that  if  said  tax  is  paid 
within  one  year  from  the  accruing  thereof  no  interest  shall  be  charged  or 
collected  thereon,  and  if  said  tax  is  paid  within  six  months  from  the  accru- 
ing thereof  a  discount  of  five  per  centum  shall  be  allowed  and  deducted 
from  said  tax;  provided,  further,  that  if  by  reason  of  claims  made  upon  the 
estate,  necessary  litigation  or  other  unavoidable  cause  of  delay,  the  estate 
of  the  decedent  or  any  part  thereof  cannot  be  settled  up  at  the  end  of  the 
year  from  his  or  her  decease,  the  probate  court,  or  the  judge  thereof,  may 
jcnake  necessary  extensions  of  time  for  the  payment  of  such  taxes,  but  no 
Single  extension  shall  exceed  one  year,  and  in  such  cases  only  six  per  centum 
per  annum  shall  be  charged  upon  the  said  tax  from  the  death  of  the  dece- 
dent to  the  expiration  of  the  period  for  which  the  extension  of  time  was 
granted,  after  which  interest,  at  the  same  rate  as  is  now  provided  by  law  for 
delinquent  taxes  shall  be  charged;  and  in  all  such  cases  the  tax  on  real 
estate  shall  remain  a  lien  on  the  real  estate  on  which  the  same  is  chargeable 
until  paid,  and  the  executors,  administrators  or  trustees  shall  give  a  bond, 
to  the  people  of  the  state  of  Idaho,  in  a  penalty  of  three  times  the  amount 
of  the  said  tax,  with  such  sureties  as  the  probate  judge  of  the  proper  county 
may  approve,  conditioned  for  the  payment  of  said  tax,  and  interest  thereon, 
at  the  expiration  of  such  period,  which  bond  shall  be  filed  in  the  office 
of  said  probate  judge.  (Stats.  1907,  p.  562.) 

§  496.     Collection  of  Tax  by  Executor  or  Trustee. 

Sec.  9.  Any  administrator,  executor,  or  trustee  having  in  charge  or  trust 
any  legacy  or  property  for  distribution,  subject  to  the  said  tax,  shall  deduct 
the  tax  therefrom,  or  if  the  legacy  or  property  be  not  money  he  shall  collect 
the  tax  thereon,  upon  the  market  value  thereof,  from  the  legatee  or  person 
entitled  to  such  property,  and  he  shall  not  deliver,  or  be  compelled  to  de- 
liver, any  specific  legacy  or  property  subject  to  tax  to  any  person  until  he 
shall  have  collected  the  tax  thereon;  and  whenever  any  such  legacy  shall 
be  charged  upon  or  payable  out  of  real  estate,  the  executor,  administrator, 
or  trustee  shall  collect  said  tax  from  the  distributee  thereof,  and  the  same 
shall  remain  a  charge  on  such  real  estate  until  paid;  if,  however,  such  legacy 
be  given  in  money  to  any  person  for  a  limited  period,  the  executor,  admin- 
istrator, or  trustee  shall  retain  the  tax  upon  the  whole  amount;  but  if  it  be 
not  in  money  he  shall  make  application  to  the  probate  court  to  make  an 
apportionment,  if  the  case  requires  it,  of  the  sum  .to  be  paid  into  his  hands 
by  such  legatees,  and  for  such  further  order  relative  thereto  as  the  case 
may  require.  (Laws  1907,  p.  563.) 

§  497.     Sale  of  Property  to  Pay  Tax. 

Sec.  10.  All  executors,  administrators,  and  trustees  shall  have  full  power 
to  sell  so  much  of  the  property  of  the  decedent  as  will  enable  them  to  pay 


IDAHO   STATUTE.  437 

said  tax,  in  the  same  manner  as  they  may  be  enabled  by  la-w  to  do  for  the 
payment  of  debts  of  the  estate,  and  the  amount  of  said  tax  shall  be  paid 
as  hereinafter  directed.  (Laws  1907,  p.  563.) 

§  498,     Payment  to  County  Treasurer — Duty  of  Controller — Receipts. 

Sec.  11.  Every  sum  of  money  retained  by  an  executor,  administrator,  or 
trustee,  or  paid  into  his  hands,  for  any  tax  on  property,  shall  be  paid  by 
him  within  thirty  days  thereafter,  to  the  treasurer  of  the  county  in  which 
the  probate  proceedings  are  pending,  and  the  said  treasurer  shall  give,  and 
every  executor,  administrator,  or  trustee  shall  take,  duplicate  receipts  for 
such  payment,  one  of  which  receipts  said  executor,  administrator,  or  trustee 
shall  immediately  send  to  the  state  auditor,  whose  duty  it  shall  be  to  charge 
the  treasurer  so  receiving  the  tax  with  the  amount  thereof,  and  said  auditor 
shall  seal  said  receipt  with  the  seal  of  his  office,  and  countersign  the  same, 
and  return  it  to  the  executor,  administrator,  or  trustee,  whereupon  it  shall 
be  a  proper  voucher  in  the  settlement  of  his  accounts;  and  an  executor, 
administrator,  or  trustee  shall  not  be  entitled  to  credits  in  his  accounts,  nor 
be  discharged  from  liability  for  such  tax,  nor  shall  said  estate  be  distrib- 
uted, unless  he  shall  prodnce  a  receipt  so  sealed  and  countersigned  by  the 
state  auditor,  or  a  copy  thereof,  certified  by  him,  and  file  the  same  with  the 
court.  (Laws  1907,  p.  564.) 

§  499.    Refunding  Excess  Payments. 

Sec.  12.  Whenever  any  debts  shall  be  proven  against  the  estate  of  a 
decedent  after  the  payment  of  legacies  or  distribution  of  property  from 
which  the  said  tax  has  been  deducted  or  upon  which  it  has  been  paid,  and 
a  refund  is  made  by  the  legatee,  devisee,  heir,  or  next  of  kin,  a  proportion 
of  the  tax  so  deducted  or  paid  shall  be  repaid  to  him  by  the  executor, 
administrator,  or  trustee,  if  the  said  tax  has  not  been  paid  to  the  county 
treasurer  or  to  the  state  auditor,  or  by  them,  if  it  has  been  so  paid.  (Laws 
1907,  p.  564.) 

§  500.  Transfer  or  Delivery  of  Stocks,  Securities,  Deposits — Notice  Thereof. 
Sec.  13.  If  a  foreign  executor,  administrator,  or  trustee  shall  assign  or 
transfer  any  stock  or  obligations  in  this  state  standing  in  the  name  of  a 
decedent,  or  in  trust  for  a  decedent,  liable  to  any  such  tax,  the  tax  shall 
be  paid  to  the  treasurer  of  the  proper  county  on  the  transfer  thereof.  No 
safe  deposit  company,  trust  company,  corporation,  bank  or  other  institution, 
person  or  persons  having  in  possession  or  under  control  securities,  deposits,  or 
other  assets  of  a  decedent,  including  the  shares  of  the  capital  stock  of,  or 
other  interests  in,  the  safe  deposit  company,  trust  company,  corporation, 
bank  or  other  institution  making  the  delivery  or  transfer  herein  provided, 
shall  deliver  or  transfer  the  same  to  the  executors,  administrators  or  legal 
representatives  of  said  decedent,  or  upon  their  order  or  request,  unless 
notice  of  the  time  and  place  of  such  intended  delivery  or  transfer  be  served 
upon  the  county  treasurer  at  least  ten  days  prior  to  said  delivery  or  trans- 
fer; nor  shall  any  such  safe  deposit  company,  trust  company,  corporation, 
bank  or  other  institution,  person  or  persons  deliver  or  transfer  any  securi- 


438  INHERITANCE  TAXATION. 

ties,  deposits  or  other  assets  of  the  estate  of  a  nonresident  decedent  includ- 
ing the  shares  of  the  capital  stock  of,  or  other  interests  in,  the  safe  deposit 
company,  trust  company,  corporation,  bank  or  other  institution,  making  the 
delivery  or  transfer,  without  retaining  a  sufficient  portion  or  amount  thereof 
to  pay  any  tax  and  penalty  which  may  thereafter  be  assessed  on  account 
of  the  delivery  or  transfer  of  such  securities,  deposits,  or  other  assets 
including  the  shares  of  the  capital  stock  of  or  other  interests  in,  the  safe 
deposit  company,  trust  company,  corporation,  bank  or  other  institution 
making  the  delivery  or  transfer,  under  the  provisions  of  this  act,  unless  the 
county  treasurer  consents  thereto  in  writing.  And  it  shall  be  lawful  for  the 
said  county  treasurer,  personally,  or  by  representative,  to  examine  said 
securities,  deposits  or  assets  at  the  time  of  such  delivery  or  transfer. 
Failure  to  serve  such  notice  and  to  allow  such  examination,  and  to  retain 
a  sufficient  portion  or  amount  to  pay  such  tax  and  penalty  as  herein  pro- 
vided, shall  render  said  safe  deposit  company,  trust  company,  corporation, 
bank  or  other  institution,  person  or  persons  liable  to  the  payment  of  two 
times  the  amount  of  the  tax  and  penalty  due  or  thereafter  to  become  due 
upon  said  securities,  deposits  or  other  assets,  including  the  shares  of  the 
capital  stock  of,  or  other  interests  in,  the  safe  deposit  company,  trust  com- 
pany, corporation,  bank  or  other  institution,  making  the  delivery  or  trans- 
fer; and  the  payment  as  herein  provided  shall  be  enforced  in  an  action 
brought  in  accordance  with  the  provisions  of  section  18  of  this  chapter. 
(Laws  1907,  p.  564.) 

§  501.    Appraisers  and  Appraisement. 

Sec.  14.  When  the  value  of  any  inheritance,  devise,  bequest,  or  other 
interest  subject  to  the  payment  of  said  tax  is  uncertain,  the  probate  court 
in  which  the  probate  proceedings  are  pending,  on  the  application  of  any 
interested  party,  or  upon  its  own  motion,  shall  appoint  some  competent  per- 
son as  appraiser,  as  often  as  and  whenever  occasion  may  require,  whose 
duty  it  shall  be  forthwith  to  give  such  notice,  by  mail,  to  all  persons  known 
to  have  or  claim  an  interest  in  such  property,  and  to  such  persons  as  the 
court  may  by  order  direct,  of  the  time  and  place  at  which  he  will  appraise 
such  property,  and  at  such  time  and  place  to  appraise  the  same  and  make  a 
report  thereof,  in  writing,  to  said  court,  together  with  such  other  facts  in 
relation  thereto  as  said  court  may  by  order  require  to  be  filed  with  the  clerk 
of  said  court;  and  from  this  report  the  said  court  shall,  by  order,  forthwith 
assess  and  fix  the  market  value  of  all  inheritances,  devises,  bequests,  or 
other  interests,  and  the  tax  to  which  the  same  is  liable,  and  shall  immedi- 
ately cause  notice  thereof  to  be  given,  by  mail,  to  all  parties  known  to  be 
interested  therein;  and  the  value  of  every  future  or  contingent  or  limited 
estate,  income,  or  interest  shall,  for  the  purposes  of  this  act,  be  determined. 
by  the  rule,  method,  and  standards  of  mortality  and  of  value  that  are  set 
forth  in  the  actuaries'  combined  experience  tables  of  mortality  for  ascer- 
taining the  value  of  policies  of  life  insurance  and  annuities,  and  for  the 
determination  of  the  liabilities  of  life  insurance  companies,  save  that  the 
rate  of  interest  to  be  assessed  in  computing  the  present  value  of  all  future 
interests  and  contingencies  shall  be  five  per  centum  per  annum;  and  the 


IDAHO  STATUTE.  439 

insurance  commissioner  shall,  on  the  application  of  said  court,  determine  the 
value  of  such  future  or  contingent  or  limited  estate,  income,  or  interest, 
upon  the  facts  contained  in  such  report,  and  certify  the  same  to  the  court, 
and  his  certificate  shall  be  conclusive  evidence  that  the  method  of  computa- 
tion adopted  therein  is  correct.  The  said  appraiser  shall  be  paid  by  the 
county  treasurer  out  of  any  funds  that  he  may  have  in  his  hands  on  account 
of  said  tax,  on  presentation  of  a  sworn  itemized  account  and  on  the  certifi- 
cate of  the  court,  at  the  rate  of  five  dollars  per  day  for  every  day  actually 
and  necessarily  employed  in  said  appraisement,  together  with  his  actual 
necessary  traveling  expenses.  (Laws  1907,  p.  565.) 

§  502.    Appraiser  Taking  Other  Than  Regular  Fees — Penalty  Therefor. 

Sec.  15.  Any  appraiser  appointed  by  virtue  of  this  act  who  shall  take 
any  fee  or  reward  from  any  executor,  administrator,  trustee,  legatee,  next 
of  kin,  or  heir  of  any  decedent,  or  from  any  other  person  liable  to  pay 
said  tax,  or  any  portion  thereof,  shall  be  guilty  of  a  misdemeanor,  and  upon 
conviction  thereof  shall  be  fined  not  less  than  two  hundred  and  fifty  dol- 
lars nor  more  than  five  hundred,  dollars,  or  imprisoned  in  the  county  jail 
ninety  days,  or  both,  and  in  addition  thereto  the  court  shall  dismiss  him 
from  such  service.  (Laws  1907,  p.  566.) 

§  503.    Nonresidents — Jurisdiction  of  Court. 

Sec.  16.  The  probate  court  in  the  county  in  which  is  situate  the  real 
property  of  a  decedent  who  was  not  a  resident  of  the  state,  or  if  there  be 
no  real  property,  then  in  the  county  in  which  any  of  the  personal  property 
of  such  nonresident  is  situate,  or  in  the  county  of  which  the  decedent  was 
a  resident  at  the  time  of  his  death,  shall  have  jurisdiction  to  hear  and  de- 
termine all  questions  in  relation  to  the  tax  arising  under  the  provisions 
of  this  act,  except  as  hereinafter  provided,  and  the  court  first  acquiring 
jurisdiction  hereunder  shall  retain  the  same,  to  the  exclusion  of  every  other. 
(Laws  1907,  p.  566.) 

§  504.     Citation  to  Delinquent  Taxpayer. 

Sec.  17.  If  it  shall  appear  to  the  probate  court,  or  judge  thereof,  that 
any  tax  accruing  under  this  act  has  not  been  paid  according  to  law,  it  shall 
issue  a  citation,  citing  the  persons  known  to  own  any  interest  in  or  part  of 
the  property  liable  to  the  tax  or  any  person  or  corporation  liable  under  the 
law  for  the  payment  of  said  tax  to  appear  before  the  court  on  a  day  cer- 
tain, not  more  than  ten  weeks  after  the  date  of  such  citation,  and  show 
cause  why  said  tax  should  not  be  paid.  The  service  of  such  citation,  and  the 
time,  manner,  and  proof  thereof,  and  the  hearing  and  determination  thereon, 
and  the  enforcement  of  the  determination  or  decree,  shall  conform  as  near 
as  may  be  to  the  provisions  now  established  by  laws  of  this  state  in  similar 
proceedings  in  the  probate  courts;  and  the  clerk  of  the  court  shall,  upon 
the  request  of  the  county  attorney  or  treasurer  of  the  county,  furnish, 


440  INHERITANCE  TAXATION. 

without  fee,  one  or  more  transcripts  of  such  decree,  and  the  same  shall  be 
docketed  and  filed  by  the  county  recorder  of  any  county  in  the  state, 
without  fee,  in  the  same  manner  and  with  the  same  effect  as  provided  by 
section  4460,  Revised  Statutes  of  Idaho,  1887,  for  filing  a  transcript  of  an 
original  docket.  (Laws  1907,  p.  567.) 

§  504a.    Proceedings  by  District  Attorney  Against  Delinquent. 

Sec.  18.  Whenever  the  treasurer  of  any  county  shall  have  reason  to  be- 
lieve that  any  tax  is  due  and  unpaid  under  this  act,  after  the  refusal  or 
neglect  of  the  persons  interested  in  the  property  liable  to  said  tax  to  pay 
the  same,  he  shall  notify  the  county  attorney  of  the  proper  county,  in  writ- 
ing, of  such  failure  to  pay  such  tax,  and  the  county  attorney  so  notified,  if 
he  have  probable  cause  to  believe  a  tax  is  due  and  unpaid,  shall  prose- 
cute the  proceeding  in  the  probate  court,  as  provided  in  section  eighteen  of 
this  act,  for  the  enforcement  and  collection  of  such  tax.  (Laws  1907, 
p.  567.) 

§  505.    Entries,  Records  and  Reports  of  County  Clerk. 

Sec.  19.  The  secretary  of  state  shall  furnish  to  each  probate  judge  a 
book,  which  shall  be  a  public  record,  and  in  which  he  shall  enter  the  name 
of  every  decedent  upon  whose  estate  an  application  has  been  made  to  the 
probate  court  for  the  issuance  of  letters  of  administration,  or  letters  testa- 
mentary, or  ancillary  letters,  the  date  and  place  of  death  of  such  decedent, 
the  estimated  value  of  his  real  and  personal  property,  the  names,  places  of 
residence,  and  relationship  to  him  of  his  heirs  at  law,  the  names  and  places 
of  residence  of  the  legatees  and  devisees,  in  any  will  of  any  such  decedent, 
the  amount  of  each  legacy  and  the  estimated  value  of  any  real  property 
devised  therein,  and  to  whom  devised.  These  entries  shall  be  made  from 
the  data  contained  in  the  papers  filed  on  any  such  application,  or  in  any 
proceeding  relating  to  the  estate  of  the  decedent.  The  probate  judge  shall 
also  enter  in  such  book  the  amount  of  personal  property  of  any  such  de- 
cedent, as  shown  by  the  inventory  thereof  when  made  and  filed  in  his  office, 
and  the  returns  made  by  any  appraiser  appointed'  by  the  court  under  this 
statute,  and  the  value  of  annuities,  life  estates,  terms  of  years,  and  other 
property  of  such  decedent,  or  given  by  him  in  his  will  or  otherwise,  as  fixed 
by  the  probate  court,  and  the  tax  assessed  thereon,  and  the  amounts  of 
any  receipts  for  payment  of  any  tax  on  the  estate  of  such  decedent  under 
this  statute  filed  with  him.  The  probate  judge  shall,  on  the  first  day  of 
January,  April,  July  and  October  of  each  year  make  a  report,  in  duplicate, 
upon.,  forms  to  be  furnished  by  the  state  auditor,  containing  all  the  data 
and  matters  required  to  be  entered  in  such  book,  and  also  of  the  property 
from  which,  or  the  party  from  which,  he  has  reason  to  believe  the  tax 
under  this  act  is  due  and  unpaid,  one  of  which  shall  be  immediately  deliv- 
ered to  the  county  treasurer  and  the  other  transmitted  to  the  state  auditor. 
(Laws  1907,  p.  567.) 


IDAHO  STATUTE.  441 

§  506.     Costs  of  Proceedings  Against  Delinquent. 

Sec.  20.  Whenever  the  probate  court  of  any  county  shall  certify  that 
there  was  probable  cause  for  issuing  a  citation  and  taking  the  proceedings 
specified  in  section  eighteen  of  this  act,  the  state  treasurer  shall  pay,  or 
allow,  to  the  treasurer  of  any  county,  all  expenses  incurred  for  services  of 
citation,  and  his  other  lawful  disbursements  that  have  not  otherwise  been 
paid.  (Laws  1907,  p.  568.) 

§  507.    Payment  by  County  to  State  Treasurer. 

Sec.  21.  The  treasurer  of  each  county  shall  collect  and  pay  the  state 
treasurer  all  taxes  that  may  be  due  and  payable  under  this  act,  who  shall 
give  him  a  receipt  therefor;  of  which  collection  and  payment  he  shall  make 
a  report,  under  oath,  to  the  state  auditor,  between  the  first  and  fifteenth 
days  of  May  and  December  of  each  year,  stating  for  what  estate  paid, 
and  in  such  form  and  containing  such  particulars  as  the  state  auditor  may 
prescribe;  and  for  all  such  taxes  collected  by  him  and  not  paid  to  the  state 
treasurer  by  the  first  day  of  June  and  January  of  each  year  he  shall  pay 
interest  at  the  rate  of  ten  per  centum  ^per  annum.  (Laws  1907,  p.  568.) 

§  508.     Furnishing  Copy  of  Receipts  to  Persons  Applying  Therefor. 

Sec.  22.  Any  person,  or  body  politic  or  corporate,  shall,  upon  the  payment 
of  the  sum  of  fifty  cents,  be  entitled  to  a  receipt  from  the  county  treas- 
urer of  any  county,  or  a  copy  of  the  receipt,  at  his  option,  that  may  have 
been  given  by  said  treasurer  for  the  payment  of  any  tax  under  this  act, 
to  be  sealed  with  the  seal  of  his  office,  which  receipt  shall  designate  on 
what  real  property,  if  any,  of  which  any  decedent  may  have  died  seised, 
said  tax  has  been  paid,  and  by  whom  paid,  and  whether  or  not  it  is  in 
full  of  said  tax;  and  said  receipt  may  be  recorded  in  the  recorder's  office 
in  the  county  in  which  said  property  is  situated,  in  a  book  to  be  kept  by 
said  recorder  for  such  purpose,  which  shall  be  labeled  "inheritance  tax." 
(Laws  1907,  p.  569.) 

§  509.    Refusal  of  Officers  to  Discharge  Duties — Penalty  Therefor. 

Sec.  23.  Every  officer  who  fails  or  refuses  to  perform,  within  a  reason- 
able time,  any  and  every  duty  required  by  the  provisions  of  this  act,  or  who 
tails  or  refuses  to  make  and  deliver  within  a  reasonable  time  any  statement 
or  record  required  by  this  act,  shall  forfeit  to  the  state  of  Idaho  the  sum 
of  one  thousand  dollars,  to  be  recovered  in  an  action  brought  by  the  attor- 
ney general  in  the  name  of  the  people  of  the  state  on  the  relation  of  the 
state  auditor.  (Laws  1907,  p.  569.) 

§  510.    Definitions  of  Words  Used  in  Statute. 

Sec.  24.  The  words  "estate"  and  "property"  as  used  in  this  act  shall  be 
taken  to  mean  the  real  and  personal  property  or  interest  therein  of  the 
testator,  intestate,  grantor,  bargainer,  vendor,  or  donor  passing  or  trans- 
ferred to  individual  legatees,  devisees,  heirs,  next  of  kin,  grantees,  donees, 


442  INHERITANCE  TAXATION. 

vendees,  or  successors,  and  shall  include  all  personal  property  within  or 
without  the  state.  The  word  "transfer"  as  used  in  this  act  shall  be  taken 
to  include  the  passing  of  property  or  any  interest  therein,  in  possession  or 
enjoyment,  present  or  future,  by  inheritance,  descent,  devise,  succession, 
bequest,  grant,  deed,  bargain,  sale,  gift,  or  appointment  in  the  manner 
herein  described.  The  word  "decedent"  as  used  in  this  act  shall  include 
the  testator,  intestate,  grantor,  bargainer,  vendor,  or  donor.  (Laws  1907, 
p.  569.) 

§  511.     Enforcement  of  Lien  of  Tax — Quieting  Title. 

Sec.  25.  In  all  cases  where  any  tax  has  become  or  shall  hereafter  be' 
come  a  lien  upon  any  property  under  or  by  virtue  of  any  of  the  provisions 
of  this  act  the  county  attorney  of  the  county  in  which  the  estate  of  the 
decedent  mentioned  in  this  act  is  being  administered  or  has  been  admin- 
istered in  probate  proceedings,  may,  whenever  any  property  of  said  estate 
has  been  distributed  without  the  payment  to  the  state  of  all  or  any  part 
of  the  taxes  payable  on  account  thereof  under  this  act,  bring  and  prosecujte 
an  action  or  actions  in  the  name  of  the  state  as  plaintiff,  for  the  purpose  of 
enforcing  such  lien  or  liens  against  all  or  any  of  the  property  subject  thereto, 
in  any  such  action  the  owner  of  any  property  or  of  any  interest  in  prop- 
erty against  which  the  lien  of  any  such  tax  is  sought  to  be  enforced,  and 
any  predecessor  in  interest  of  any  such  owner  whose  title  or  interest  was 
derived  through  any  such  decedent  by  will  or  succession  or  by  decree  of 
distribution  of  the  estate  of  such  decedent,  and  any  lienor  or  encumbrancer 
subsequent  to  the  lien  of  such  tax  may  be  made  a  party  defendant.  The 
enumeration  in  this  section  of  the  persons  who  may  be  made  defendants 
shall  not  be  deemed  to  be  exclusive,  but  the  joinder  or  nonjoinder  of  parties, 
except  when  otherwise  herein  provided,  shall  be  governed  by  the  rules  in 
equity  in  similar  cases. 

(a)  Actions  may  be  brought  against  the  state  for  the  purpose  of  quieting 
title  to  any  property,  against  the  lien  or  claim  of  lien  of  any  tax  or  taxes 
under  this  act,  or  for  the  purpose  of  having  it  determined  that  any  prop- 
erty is  not  subject  to  any  lien  for  faxes  under  this  act.  In  any  such  action, 
the  plaintiffs  may  be  any  administrator  or  executor  of  the  estate  or  will 
of  any  decedent,  whether  the  said  estate  shall  have  been  fully  administered 
and  the  estate  settled  and  closed  or  not,  and  any  heir,  legatee  or  devisee 
of  any  such  decedent,  or  trustee  of  the  estate  or  any  part  of  the  estate  of 
such  decedent,  or  distributee  of  the  estate  or  any  part  of  the  estate  of 
any  such  decedent,  and  any  assignee,  grantee  or  successor  in  interest  of  any 
of  such  persons,  and  all  or  any  other  persons  who  might  be  made  parties 
defendant  in  any  action  brought  by  the  state  under  the  provisions  of  this 
section,  and  notwithstanding  that  all  or  any  of  the  persons  enumerated  in 
this  section  shall  or  may  have  assigned,  granted,  conveyed  or  otherwise 
parted  with  all  or  any  interest  in  or  title  to  the  property,  or  any  thereof, 
involved  in  any  such  claim  of  lien  before  the  commencement  of  such  action. 
All  or  any  of  the  persons  in  this  action  enumerated  may  be  joined  or  united 
as  parties  plaintiff.  The  enumeration  in  this  section  of  the  persons  who  may 
be  made  parties  shall  not  be  deemed  to  be  exclusive,  but  the  joinder  or 


IDAHO  STATUTE.  443 

nonjoinder  of  parties,  except  when  otherwise  herein  provided,  shall  be  gov- 
erned by  the  rules  in  equity  in  similar  cases.  In  all  cases  any  person  who 
might  properly  be  a  party  plaintiff  in  any  such  action  who  refuses  to  join 
as  plaintiff  may  be  made  a  defendant. 

(b)  All  actions  under  this  section   shall  be   commenced   in  the   district 
court  of  the  county  in  which  is  situated  any  part   of  any  real  property 
against  which  any  lien  is  sought  to  be  enforced,  or  to  which  title  is  sought 
to  be  quieted  against  any  lien,  or  claim  of  liens. 

(c)  Service  of  summons  in  the  actions  brought  against  the  state  shall 
be  made  on  the  secretary  of  state  and  on  the  county  attorney  of  the  county 
in  which  the  estate  of  the  decedent  mentioned  herein  is  being  administered, 
or  has  been  administered  in  probate  proceedings,  and  it  shall  be  the  duty 
of  said  county  attorney  to  defend  all  such  actions. 

(d)  The  procedure  and  practice  in  all  actions  brought  under  this  section, 
except  as  otherwise  provided  in  this  act,  shall  be  governed  by  the  provi- 
sions of  the  Code  of  Civil  Procedure  in  relation  to  civil  actions,  so  far  as 
the  same  shall  or  may  be  applicable,  including  all  provisions  relating  to 
motions  for  new  trials  and  appeals. 

(e)  The  remedies  provided  in  this  section  shall  be  in   addition   to    and 
not  exclusive  of  any  remedies  provided  in  the  sections  preceding  this  sec- 
tion.    (Laws  1907,  p.  569.) 

§  512.    Repeal  of  Conflicting  Acts. 

Sec.  26.    All  acts  and  parts  of  acts  in  conflict  with  this  act  are  hereby 
repealed.    Approved  March  16,  1907.     (Stats.  1907,  p.  571.) 


444  INHERITANCE  TAXATION. 


CHAPTER  XXIX. 
ILLINOIS  STATUTE. 

(Laws  of  1905,  p.  SOI;  Bev.  Stats.  1909,  p.  1897.) 

9  514.  Transfers  Subject  to  Tax — Rates — Exemptions. 

§  515.  Estates  for  Years  or  for  Life  and  Remainders. 

§  .516.  Time  for  Payment — Interest  and  Discount — Bond  for  Payment. 

§  517.  Collection  of  Tax  by  Executor. 

§  518.  Liability  of  Executor— Sale  of  Property  to  Pay  Tax. 

§  519.  Payment  by  Executor  to  County  Treasurer — Receipts  and  Vouchers. 

§  520.  Executor  to  Give  Notice  to  County  Treasurer  of  Transfers. 

§  521.  Refunding  Excess  Payments. 

§  522.  Transfer  or  Delivery  of  Stocks,  Securities  and  Deposits — Notice. 

§  523.  Refunding  of  Tax  Erroneously  Paid. 

§  524.  Appraisers  and  Appraisement. 

§  525.  Fees  of  Clerk — Inheritance  Tax — Clerk  and  Attorney. 

§  526.  Appraiser  Receiving  Illegal  Fees — Penalty. 

§  527.  Jurisdiction  of  Court. 

§  528.  Citation  to  Delinquent  Taxpayer. 

§  529.  Duty  of  State  Attorney  to  Collect  Tax. 

§  530.  Statement  to  County  Treasurer  of  Unpaid  Taxes. 

§  531.  Allowance  for  Expenses  Incurred. 

§  532.  Record  to  be  Kept  in  Office  of  County  Judge. 

.§  533.  Payment  by  County  Treasurer  to  State  Treasurer — Receipts. 

§  534.  Commissions  of  County  Treasurer. 

§  535.  Receipts  for  Payment  of  Tax. 

§  536.  Proceedings  to  Determine  Whether  Transfer  Subject  to  Tax. 

9  537.  Lien  of  Tax. 

§  538.  Contingent  or  Expectant  Estates. 

§  539.  Computation  of  Taxes  on  Expectant  Estates  Under  Former  Statute. 

§  540.  Guardian  for  Person  Under  Disability. 

§  541.  Transfers  Exempt  from  Tax. 

§  542.  Transfers  by  Deed,  Instrument  or  Memoranda. 

§  543.  Certified  Copies  of  Papers. 

§  544.  Repeal  of  Other  Statutes. 

§  514.    Transfers  Subject  to  Tax — Rate  of  Taxation — Exemptions. 

Sec.  1.  A  tax  shall  be  and  is  hereby  imposed  upon  the  transfer  of  any 
property,  real,  personal  or  mixed,  or  of  any  interest  therein  or  income  there- 
from, in  trust  or  otherwise,  to  persons,  institutions  or  corporations,  not  here- 
inafter exempted,  in  the  following  cases: 

When  the  transfer  is  by  will  or  by  the  intestate  laws  of  this  state,  from 
any  person  dying,  seised  or  possessed  of  the  property  while  a  resident  of 
the  state. 


ILLINOIS  STATUTE.  445 

When  the  transfer  is  by  will  or  intestate  laws  of  property  within  the 
state  and  the  decedent  was  a  nonresident  of  the  state  at  the  time  of  his 
death. 

When  the  transfer  is  of  property  made  by  a  resident,  or  by  a  -nonresident 
when  such  nonresident's  property. is  within  this  state,  by  deed,  grant,  bar- 
gain, sale  or  gift,  made  in  contemplation  of  the  death  of  the  grantor,  ven- 
dor or  donor,  or  intended  to  take  effect  in  possession  or  enjoyment  at  or 
after  such  death.  When  any  such  person,  institution  or  corporation  be- 
comes beneficially  entitled  in  possession  or  expectancy  to  any  property  or 
the  income  therefrom,  by  any  such  transfer,  whether  made  before  or  after 
the  passage  of  this  act. 

Whenever  any  person,  institution  or  corporation  shall  exercise  a  power  of 
appointment  derived  from  any  disposition  of  property  made  either  before 
or  after  the  passage  of  this  act,  such  appointment,  when  made,  shall  be 
deemed  a  taxable  transfer  under  the  provisions  of  this  act,  in  the  same 
manner  as  though  the  property  to  which  such  appointment  relates  belonged 
absolutely  to  the  donee  of  such  power  and  had  been  bequeathed  or  devised 
by  such  donee  by  will;  and  whenever  any  person  or  corporation  possessing 
such  a  power  of  appointment  so  derived  shall  omit  or  fail  to  exercise  the 
same  within  the  time  provided  therefor,  in  whole  or  in  part,  a  transfer 
taxable  under  the  provisions  of  this  act  shall  be  deemed  to  take  place  to 
the  extent  of  such  omission  or  failure,  in  the  same  manner  as  though  the 
persons  or  corporations  thereby  becoming  entitled  to  the  possession  or  en- 
joyment of  the  property  to  which  such  power  related  had  succeeded  thereto 
by  a  will  of  the  donee  of  the  power  failing  to  exercise  such  power,  taking 
effect  at  the  time  of  such  omission  or  failure. 

When  the  beneficial  interests  to  any  property  or  income  therefrom  shall 
pass  to  or  for  the  use  of  any  father,  mother,  husband,  wife,  child,  brother, 
sister,  wife  or  widow  of  the  son,  or  the  husband  of  the  daughter,  or  any 
child  or  children  adopted  as  such  in  conformity  with  the  laws  of  the  state 
of  Illinois,  or  to  any  person  to  whom  the  deceased,  for  not  less  than  ten 
years  prior  to  death,  stood  in  the  acknowledged  relation  of  a  parent;  pro- 
vided, however,  such  relationship  began  at  or  before  said  person's  fifteenth 
birthday  and  was  continuous  for  said  ten  years  thereafter:  And,  provided, 
also,  that  the  parents  of  such  person  so  standing  in  such  relation  shall  be 
deceased  when  such  relationship  commenced,  or  to  any  lineal  descendant 
of  such  decedent  born  in  lawful  wedlock.  In  every  such  case  the  rate  of 
tax  shall  be  two  dollars  on  every  one  hundred  dollars  of  the  clear  market 
value  of  such  property  received  by  each  person,  when  the  amount  so  received 
exceeds  in  amount  the  sum  of  one  hundred  thousand  dollars,  and  one  dollar 
on  each  one  hundred  dollars  of  the  clear  market  value  of  such  property 
received  by  each  person  when  the  amount  so  received  is  one  hundred  thou- 
sand dollars  or  less;  and  at  and  after  the  same  rates,  respectively,  for  every 
less  amount;  provided,  that  any  gift,  legacy,  inheritance,  transfer,  appoint- 
ment or  interest  which  may  be  valued  at  a  less  sum  than  twenty  thousand 
dollars  shall  not  be  subject  to  any  such  duty  or.  taxes,  and  the  tax  is  to  be 
levied  in  the  above  cases  only  upon  the  excess  of  twenty  thousand  dollars 
received  by  each  person.  When  the  beneficial  interest  to  any  property 


446  INHERITANCE  TAXATION. 

or  income  therefrom  shall  pass  to  or  for  the  use  of  any  uncle,  aunt,  niece 
or  nephew  or  any  lineal  descendant  of  the  same,  in  any  such  case  the  rate 
of  such  tax  shall  be  four  dollars  on  every  one  hundred  dollars  of  the  clear 
market  value  of  such  property  received  by  each  person  on  the  excess  of 
two  thousand  dollars  so  received  by  each  person  when  the  amount  so  re- 
ceived exceeds  the  sum  of  twenty  thousand  dollars;  and  two  dollars  on 
every  one  hundred  dollars  of  the  clear  market  value  of  such  property  re- 
ceived by  each  person  on  the  excess  of  two  thousand  dollars  so  received 
by  each  person- when  the  amount  so  received  is  twenty  thousand  dollars 
or  less.  In  all  other  cases  the  rate  shall  be  as  follows:  On  each  and  every 
one  hundred  dollars  of  the  clear  market  value  of  all  property  and  at  the 
same  rate  for  any  less  amount;  on  all  transfers  of  ten  thousand  dollars 
and  less,  three  dollars;  on  all  transfers  over  ten  thousand  dollars  and  not 
exceeding  twenty  thousand  dollars,  four  dollars;  on  all  transfers  over  twenty 
thousand  dollars  and  not  exceeding  fifty  thousand  dollars,  five  dollars;  on 
all  transfers  over  fifty  thousand  dollars  and  not  exceeding  one  hundred 
thousand  dollars,  six  dollars;  and  on  all  transfers  over  one  hundred  thou- 
sand dollars,  ten  dollars;  provided,  that  any  gift,  legacy,  inheritance,  trans- 
fer, appointment  or  interest  which  may  be  valued  at  a  less  sum  than  five 
hundred  dollars  shall  not  be  subject  to  any  duty  or  tax.  (Rev.  Stats.  1909, 
p.  1897.) 

§  515.    Estates  for  Years  or  for  Life  and  Remainders. 

Sec.  2.  When  any  property  or  interest  therein  or  income  therefrom  shall 
pass  or  be  limited  for  the  life  of  another,  or  for  a  term  of  years,  or  to  termi- 
nate on  the  expiration  of  a  certain  period  the  property  of  the  decedent 
so  passing  shall  be  appraised  immediately  after  the  death  of  the  decedent, 
and  the  value  of  the  said  life  estate,  term  of  years  or  period  of  limitation 
shall  be  fixed  upon  mortality  tables,  using  the  interest  rate  or  income  rate 
of  five  per  cent;  and  the  value  of  the  remainder  in  said  property  so  lim- 
ited shall  be  ascertained  by  deducting  the  value  of  the  life  estate,  term 
of  years  or  period  of  limitation  from  the  fair  market  value  of  the  property 
eo  limited,  and  the  tax  on  the  several  estate  or  estates,  remainder  or  re- 
mainders, or  interests  shall  be  immediately  due  and  payable  to  the  treasurer 
of  the  proper  county,  together  with  interest  thereon,  and  said  tax  shall 
accrue  as  provided  in  section  three  (3)  of  this  act,  and  remain  a  lien  upon 
the  entire  property  limited  until  paid;  provided,  that  the  person  or  persons, 
body  politic  or  corporate,  beneficially  interested  in  property  chargeable  with 
said  tax,  elect  not  to  pay  the  same  until  they  shall  come  into  actual  posses- 
sion or  enjoyment  of  such  property,  then  in  that  case  said  person  or  per- 
sons, or  body  politic  or  corporate,  shall  give  bond  to  the  people  of  the  state 
of  Illinois  in  a  penal  sum  three  times  the  amount  of  the  tax  arising  from 
such  property,  limited  with  such  sureties  as  the  county  judge  may  approve, 
conditioned  for  the  payment  of  the  said  tax  and  interest  thereon  at  such 
time  or  period  as  they  or  their  representatives  may  come  into  the  actual 
possession  or  enjoyment  of  said  property;  which  bond  shall  be  filed  in  the 
office  of  the  county  clerk  of  the  proper  county;  provided,  further,  that  such 
person  or  persons,  body  politic  or  corporate,  shall  make  a  full  verified  return 


ILLINOIS  STATUTE.  447 

of  said  property  to  said  county  judge  and  file  the  same  in  his  office  within 
one  year  from  the  death  of  the  decedent,  with  the  bond  and  sureties  as 
above  provided;  and,  further,  said  person  or  persons,  body  politic  or  cor- 
porate shall  renew  said  bond  every  five  years  after  the  date  of  the  death 
of  decedent.  (Eev.  Stats.  1909,  p.  1898.) 

§  516.    Time  for  Payment — Interest  and  Discount — Bond  for  Payment. 

Sec.  3.  All  taxes  imposed  by  this  act,  unless  otherwise  herein  provided 
for,  shall  be  due  and  payable,  at  the  death  of  the  decedent,  and  interest  at 
the  rate  of  six  per  cent  per  annum  shall  be  charged  and  collected  thereon 
for  such  time  as  said  taxes  are  not  paid;  provided,  that  if  said  tax  is  paid 
within  six  months  from  the  accruing  thereof,  interest  shall  not  be  charged 
or  collected  thereon,  but  a  discount  of  five  per  cent  shall  be  allowed  and 
deducted  from  said  tax;  and  in  all  cases  where  the  executors,  administrators 
or  trustees  do  not  pay  such  tax  within  one  year  from  the  death  of  the  de- 
cedent, they  shall  be  required  to  give  a  bond  in  the  form  and  to  the  effect 
prescribed  in  section  2  of  this  act,  for  the  payment  of  said  tax,  together 
with  interest.  (Eev.  Stats.  1909,  p.  1898.) 

§  517.    Collection  of  Tax  by  Executor. 

Sec.  4.  Any  administrator,  executor  or  trustee  having  any  charge  or 
trust  in  legacies  or  property  for  distribution  subject  to  the  said  tax  shall 
deduct  the  tax  therefrom,  or  if  the  legacy  or  property  be  not  money  he 
shall  collect  a  tax  thereon  upon  the  appraised  value  thereof  from  the  legatee 
or  person  entitled  to  such  property,  and  he  shall  not  deliver  or  be  com- 
pelled to  deliver  any  specific  legacy  or  property  subject  to  tax  to  any  per- 
son until  he  shall  have  collected  the  tax  thereon;  and  whenever  any  such 
legacy  shall  be  charged  upon  or  payable  out  of  real  estate  the  heir  or  dev- 
isee before  paying  the  same  shall  deduct  said  tax  therefrom,  and  pay  the 
same  to  the  executor,  administrator  or  trustee,  and  the  same  shall  remain 
a  charge  on  such  real  estate  until  paid,  and  the  payment  thereof  shall  be 
enforced  by  the  executor,  administrator  or  trustee  in  the  same  manner  that 
the  said  payment  of  said  legacies  might  be  enforced,  if,  however,  such 
legacy  be  given  in  money  to  any  person  for  a  limited  period,  he  shall  retain 
the  tax  upon  the  whole  amount,  but  if  it  be  not  in  money  he  shall  make 
application  to  the  court  having  jurisdiction  of  his  accounts,  to  make  an 
apportionment  if  the  case  requires  it  of  the  sum  to  be  paid  into  his  hands 
by  such  legatees,  and  for  such  further  order  relative  thereto  as  the  case 
may  require.  (Eev.  Stats.  1909,  p.  1898.) 

§  518.    Liability  of  Executor— Sale  of  Property  to  Pay  Tax. 

Sec.  5.  All  -executors,  administrators  and  trustees  shall  be  personally 
liable  for  the  payment  of  taxes  and  interest,  and  where  proceedings  for 
collection  of  taxes  assessed  be  had,  said  executors,  administrators  and  trus- 
tees shall  be  personally  liable  for  the  expenses,  costs  and  fees  of  collection. 
They  shall  have  full  power  to  sell  so  much  of  the  property  of  the  decedent 
as  will  enable  them  to  pay  »aid  tax,  in  the  same  manner  as  they  may  be 
enabled  to  do  by  law,  for  the  payment  of  duties  of  their  testators  and  in- 


449  INHERITANCE  TAXATION. 

testates,  and  the  amount  of  said  tax  shall  be  paid  as  hereinafter  directed. 
(Rev.  Stats.  1909,  p.  1899.) 

§  519.  Payment  by  Executor  to  County  Treasurer — Receipts  and  Vouchers. 
Sec.  6.  Every  sum  of  money  retained  by  any  executor,  administrator  or 
trustee,  or  paid  into  his  hands  for  any  tax  on  any  property,  shall  be  paid 
by  him  within  thirty  days  thereafter  to  the  treasurer  of  the  proper  county, 
and  the  said  treasurer  or  treasurers  shall  give,  and  every  executor,  adminis- 
trator or  trustee  shall  take,  duplicate  receipts  from  him  of  said  payments, 
one  of  which  receipts  he  shall  immediately  send  to  the  treasurer,  whose  duty 
it  shall  be  to  charge  the  treasurer  so  receiving  the  tax  with  the  amount 
thereof,  and  shall  seal  said  receipt  with  the  seal  of  his  office  and  counter- 
sign the  same  and  return  it  to  the  executor,  administrator  or  trustee,  where- 
upon it  shall  be  a  proper  voucher  in  the  settlement  of  his  accounts;  but  the 
executor,  administrator  or  trustee  shall  not  be  entitled  to  credit  in  his 
accounts  or  be  discharged  from  liability  for  such  tax  unless  he  shall  pro- 
cure a  receipt  so  sealed  and  countersigned  by  the  treasurer  and  a  copy  thereof 
certified  by  him.  (Rev.  Stats.  1909,  p.  1899.)  , 

§  520.     Executor  to  Give  Notice  to  County  Treasurer  of  Transfers. 

Sec.  7.  Whenever  any  of  the  real  estate  of  which  any  decedent  may  die 
seised  shall  pass  to  any  body  politic  or  corporate,  or  to  any  person  or  per- 
sons, or  in  trust  for  them,  it  shall  be  the  duty  of  the  executor,  adminis- 
trator or  trustee  of  such  decedent  to  give  information  thereof  in  writing 
to  the  treasurer  of  the  county  where  said  real  estate  is  situated,  within 
six  months  after  they  undertake  the  execution  of  their  expected  duties, 
or  if  the  fact  be  not  known  to  them  within  that  period,  then  within  one 
month  after  the  same  shall  have  come  to  their  knowledge.  (Rev.  Stats. 
1909,  p.  1899.) 

§  521.    Refunding  Excess  Payments. 

Sec.  8.  Whenever  debts  shall  be  proved  against  the  estate  of  the  de- 
cedent after  distribution  of  legacies  from  which  the  inheritance  tax  has 
been  deducted  in  compliance  with  this  act,  and  the  legatee  is  required  to 
refund  any  portion  of  the  legacy,  a  proportion  of  the  said  tax  shall  be 
repaid  to  him  by  the  executor  or  administrator  if  the  said  tax  has  not  been 
paid  into  the  state  or  county  treasury,  or  by  the  county  treasurer  if  it  has 
been  so  paid.  (Rev.  Stats.  1909,  p.  1899.) 

§  522.     Transfer  or  Delivery  of  Stocks,  Securities  and  Deposits — Notice. 

Sec.  9.  If  a  foreign  executor,  administrator  or  trustee  shall  assign  or 
transfer  any  stock  or  obligation  in  this  state  standing  in  the  name  of  the 
decedent,  or  in  trust  for  a  decedent,  liable  to  any  such  tax,  the  tax  shall 
be  paid  to  the  treasurer  of  the  proper  county  on  the  transfer  thereof.  No 
safe  deposit  company,  trust  company,  corporation,  bank  or  other  institu- 
tion, person  or  persons  having  in  possession  or  under  control  securities, 
deposits,  or  other  assets  belonging  to  or  standing  in  the  name  of  a  decedent 
who  waa  a  resident  or  nonresident,  or  belonging  to,  or  standing  in  the  joint 


ILLINOIS  STATUTE.  449 

names  of  such  a  decedent  and  one  or  more  persons,  including  the  shares  of 
the  capital  stock  of,  or  other  interests  in,  the  safe  deposit  company,  trust 
company,  corporation,  bank  or  other  institution  making  the  delivery  or 
transfer  herein  provided,  shall  deliver  or  transfer  the  same  to  the  executors, 
administrators  or  legal  representatives  of  said  decedent,  or  to  the  survivor 
or  survivors  when  held  in  the  joint  names  of  a  decedent  and  one  or  more 
persons,  or  upon  their  order  or  request,  unless  notice  of  the  time  and  place 
of  such  intended  delivery  or  transfer  be  served  upon  the  state  treasurer  and 
attorney  general  at  least  ten  days  prior  to  said  delivery  or  transfer;  nor 
shall  any  such  safe  deposit  company,  trust  company,  corporation,  bank  or 
other  institution,  person  or  persons  deliver  or  transfer  any  securities,  de- 
posits or  other  assets  belonging  to  or  standing  in  the  name  of  a  decedent, 
or  belonging  to,  or  standing  in  the  joint  names  of  a  decedent  and  one  or 
more  persons,  including  the  shares  of  the  capital  stock  of,  or  other  interests 
in,  the  safe  deposit  company,  trust  company,  corporation,  bank  or  other  in- 
stitution making  the  delivery  or  transfer,  without  retaining  a  sufficient  por- 
tion or  amount  thereof  to  pay  any  tax  or  interest  which  may  thereafter  be 
assessed  on  account  of  the  delivery  or  transfer  of  such  securities,  deposits 
or  other  assets,  including  the  shares  of  the  capital  stock  of,  or  other  in- 
terests in,  the  safe  deposit  company,  trust  company,  corporation,  bank  or 
other  institution  making  the  delivery  or  transfer,  under  the  provisions  of 
this  article,  unless  the  state  treasurer  and  attorney  general  consent  thereto 
in  writing.  And  it  shall  be  lawful  for  the  state  treasurer,  together  with 
the  attorney  general,  personally  or  by  representatives,  to  examine  said 
securities,  deposits  or  assets  at  the  time  of  such  delivery  or  transfer.  Fail- 
ure to  serve  such  notice  or  failure  to  allow  such  examination,  or  failure  to 
retain  a  sufficient  portion  or  amount  to  pay  such  tax  and  interest  as  herein 
provided  shall  render  said  safe  deposit  company,  trust  company,  corporation, 
bank  or  other  institution,  person  or  persons  liable  to  the  payment  of  the  amount 
of  the  tax  and  interest  due  or  thereafter  to  become  due  upon  said  securities, 
deposits  or  other  assets,  including  the  shares  of  the  capital  stock  of,  or  other 
interests  in,  the  safe  deposit  company,  trust  company,  corporation,  bank  or 
other  institution  making  the  delivery  or  transfer,  and  in  addition  thereto,  a 
penalty  of  one  thousand  dollars;  and  the  payment  of  such  tax  and  interest 
thereon,  or  of  the  penalty  above  prescribed,  or  both,  may  be  enforced  in  an 
action  brought  by  the  state  treasurer  in  any  court  of  competent  jurisdiction. 
(Rev.  Stats.  1909,  p.  1899.) 

§  523.    Refunding  of  Tax  Erroneously  Paid. 

Sec.  10.  When  any  amount  of  said  tax  shall  have  been  paid  erroneously 
to  the  state  treasurer,  it  shall  be  lawful  for  him  on  satisfactory  proof  rendered 
to  him  by  said  county  treasurer  of  said  erroneous  payments  to  refund  and  pay 
to  the  executor,  administrator  or  trustee,  person  or  persons  who  have  paid  any 
such  tax  in  error  the  amount  of  such  tax  so  paid,  provided  that  all  applications 
for  the  repayment  of  said  tax  shall  be  made  within  two  years  from  the  date  of 
said  payment.  (Rev.  Stats.  1909,  p.  1900.) 
29 


450  INHERITANCE  TAXATION. 

§  524.    Appraisers  and  Appraisement. 

Sec.  11.  In  order  to  fix  the  value  of  property  of  persons  whose  estate  shall 
be  subject  to  the  payment  of  said  tax,  the  county  judge,  on  application  of 
any  interested  party,  or  upon  his  own  motion  shall  appoint  some  competent 
person  as  appraiser  as  often  as  or  whenever  occasion  may  require,  whose  duty 
it  shall  be  forthwith  to  give  such  notice  by  mail,  to  all  persons  known  to  have 
or  claim  an  interest  in  such  property,  and  to  such  persons  as  the  county  judge, 
may,  by  order  direct,  of  the  time  and  place  he  will  appraise  such  property,  and 
at  such  time  and  place  to  appraise  the  same  at  a  fair  market  value,  and  for 
that  purpose  the  appraiser  is  authorized,  by  leave  of  the  county  judge,  to  use 
subpoenas  for  and  to  compel  the  attendance  of  witnesses  before  him,  and  to 
take  evidence  of  such  witnesses  under  oath  concerning  such  property  and  the 
value  thereof,  and  he  shall  make  a  report  thereof  and  of  such  value  in  writing, 
to  said  county  judge,  with  the  depositions  of  the  witnesses  examined  and  such 
other  facts  in  relation  thereto  and  to  said  matters  as  said  county  judge  may, 
by  order,  require  to  be  filed  in  the  office  of  the  clerk  of  said  county  court,  and 
from  this  report  the  said  county  judge  shall  forthwith  assess  and  fix  the  then 
cash  value  of  all  estates,  annuities  and  life  estates  or  terms  of  years  growing 
out  of  said  estate,  and  the  tax  to  which  the  same  is  liable,  and  shall  immedi- 
ately give  notice  by  mail  to  all  parties  known  to  be  interested  therein.  Any 
person  or  persons  dissatisfied  with  the  appraisement  or  assessment  may  appeal 
therefrom  to  the  county  court  of  the  proper  county  within  sixty  days  after  the 
making  and  filing  of  such  appraisement  or  assessment  on  paying  or  giving 
security  satisfactory  to  the  county  judge  to  pay  all  costs,  together  with  what- 
ever taxes  shall  be  fixed  by  said  court.  The  said  appraiser  shall  be  paid  by  the 
county  treasurer  out  of  any  funds  he  may  have  in  his  hands  on  account  of 
the  inheritance  tax  collected  in  said  appraisement,  as  by  law  provided,  on  the 
certificate  of  the  county  judge,  such  compensation  as  such  judge  may  deem 
just  for  said  appraiser's  services  as  such  appraiser,  not  to  exceed  ten  dollars 
per  day  for  each  day  actually  and  necessarily  employed  in  said  appraisement, 
together  with  his  actual  and  necessary  traveling  expenses  and  disbursements, 
including  such  witness  fees  paid  by  him.  (Eev.  Stats.  1909,  p.  1900.) 

§  525.    Fees  of  Clerk — Inheritance  Tax  Clerk  and  Attorney. 

Sec.  12.  The  fees  of  the  clerk  of  the  county  court  in  inheritance  tax  matters 
in  the  respective  counties  of  this  state,  as  classified  in  the  act  concerning  fees 
and  salaries,  shall  be  as  follows: 

In  counties  of  the  first  and  second  class,  for  services  in  all  proceedings  in 
each  estate  before  the  county  judge  the  clerk  shall  receive  a  fee  of  five  dollars. 
In  all  such  proceedings  in  counties  of  the  third  class,  the  clerk  shall  receive  a 
fee  of  ten  dollars.  Such  fees  shall  be  paid  by  the  county  treasurer,  on  the 
certificate  of  the  county  judge,  out  of  any  money  in  his  hands,  on  account  of 
said  tax.  In  counties  of  the  third  class,  the  attorney  general  of  the  state  may 
appoint  an  attorney,  who  shall  be  known  as  the  "inheritance  tax  attorney," 
and  whose  salary  shall  be  not  to  exceed  three  thousand  dollars  per  year,  pay- 
able monthly  out  of  the  state  treasury  upon  warrants  drawn  by  the  auditor  of 
public  accounts,  on  vouchers  approved  by  the  attorney  general.  In  counties 
of  the  third  class,  thg  clerk  of  the  county  court  may  appoint  a  clerk  in  the 


ILLINOIS  STATUTE.  451 

office  of  the  clerk  of  said  court,  to  be  known  as  the  "inheritance  tax  clerk," 
whose  compensation  shall  be  fixed  by  the  county  judge,  not  to  exceed  fifteen 
hundred  dollars  per  year,  and  not  to  exceed  the  fee  earned  in  said  office  in  in- 
heritance tax  matters,  the  surplus  of  such  fees  over  said  compensation  so  fixed 
to  be  turned  into  the  county  treasury.  In  addition  to  the  above,  the  clerk  of 
the  county  court  shall  be  entitled,  in  all  suits  brought  for  the  collection  of 
delinquent  inheritance  tax,  and  all  contested  inheritance  tax  cases  appealed 
from  the  county  judge  to  the  county  court,  and  in  all  appeals  from  the  county 
court  to  the  supreme  court,  the  same  fees  as  are  now,  or  which  may  hereafter 
be,  allowed  by  law  in  suits  at  law,  or  in  the  matter  of  appeal  at  law,  to  or 
from  the  county  court,  which  fees  shall  be  taxed  as  costs  and  paid  as  in  other 
cases  at  law;  and  in  all  cases  arising  under  this  act,  including  certified  copies 
of  documents  or  records  in  his  office,  for  which  no  specific  fees  are  provided, 
the  clerk  of  the  county  court  shall  charge  against  and  collect  from  the  person 
applying  for,  or  entitled  to  such  services,  or  certified  copies,  the  same  fees  as 
are  now,  or  which  may  hereafter  be,  allowed  for  similar  services  or  certified 
copies  in  said  court,  and  for  recording  inheritance  tax  receipts  required  to  be 
recorded  in  his  office,  he  shall  receive  the  same  fees  which  now  are  or  hereafter 
may  be  allowed1  by  law  to  the  recorder  of  deeds  for  recording  similar  instru- 
ments. (Kev.  Stats.  1909,  p.  1901.) 

§  526.    Appraiser  Receiving  Illegal  Fees — Penalty. 

Sec.  13.  Any  appraiser  appointed  by  this  act,  who  shall  take  any  fee 
or  reward  from  any  executor,  administrator,  trustee,  legatee,  next  of  kiu 
or  heir  of  any  decedent,  or  from  any  other  person  liable  to  pay  said  tax  or 
any  portion  thereof,  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
in  any  court  having  jurisdiction  of  misdemeanors,  he  shall  be  fined  not  less 
than  two  hundred  and  fifty  dollars,  nor  more  than  five  hundred  dollars  and 
imprisoned  not  exceeding  ninety  days;  and  in  addition  thereto  the  county 
judge  shall  dismiss  him  from  such  service.  (Kev.  Stats.  1909,  p.  1901.) 

§  527.    Jurisdiction  of  Court. 

Sec.  14.  The  county  court  in  the  county  in  which  the  property  is  situated 
of  the  decedent,  who  was  not  a  resident  of  tbe  state  or  in  the  county  of 
which  the  deceased  was  a  resident  at  the  time  of  his  death,  shall  have  jur- 
isdiction to  hear  and  determine  all  questions  in  relation  to  the  tax  arising 
under  the  provisions  of  this  act,  and  the  county  court  first  acquiring  juris- 
diction hereunder  shall  retain  the  same  to  the  exclusion  of  every  other. 
(Bev.  Stats.  1909,  p.  1901.) 

§  528.    Citation  to  Delinquent  Taxpayer. 

Sec.  15.  If  it  shall  appear  to  the  county  court  that  any  tax  accruing 
under  this  act  has  not  been  paid  according  to  law,  it  shall  issue  a  summons 
summoning  the  persons  interested  in  the  property  liable  to  the  tax  to  appear 
before  the  court  on  a  day  certain,  not  more  than  three  months  after  the 
date  of  such  summons,  to  show  cause  why  said  tax  should  not  be  paid.  The 
process,  practice  and  pleadings,  and  the  hearing  and  determination  thereof, 
and  the  judgment  in  said  court  in  such  cases  shall  be  the  same  as  those 


452  INHERITANCE  TAXATION. 

now  provided,  or  which  may  hereafter  be  provided  in  probate  cases  in  the 
county  courts  of  this  state,  and  the  fees  and  costs  in  such  cases  shall  be 
the  same  as  in  probate  cases  in  the  county  courts  of  this  state.  (Rev.  Stats. 
1909,  p.  1902.) 

§  529.    Duty  of  State  Attorney  to  Collect  Tax. 

Sec.  16.  Whenever  it  appears  that  any  tax  is  due  and  unpaid  under  this 
act,  and  the  persons,  institutions  or  corporations  liable  for  said  tax  have 
refused  or  neglected  to  pay  the  same,  it  shall  be  the  duty  of  the  state's 
attorney,  in  counties  of  the  first  and  second  class,  and  the  inheritance  tax 
attorney,  in  counties  of  the  third  class,  if  he  has  proper  cause  to  believe  a 
tax  is  due  and  unpaid,  to  prosecute  the  collection  of  same  in  the  county  court 
in  the  proper  county,  in  the  manner  provided  in  section  fifteen  of  this  act, 
for  the  enforcement  and  collection  of  such  tax;  and  in  every  such  cas.e  said 
court  shall  allow  as  costs  in  said  case,  such  fees  to  said  attorney  as  the 
court  may  deem  reasonable.  (Eev.  Stats.  1909,  p.  1902.) 

§  530.     Statement  to  County  Treasurer  of  Unpaid  Taxes. 

Sec.  17.  The  county  judge  and  county  clerk  of  each  county  shall,  every 
three  months,  make  a  statement  in  writing  to  the  county  treasurer  of  the 
county  of  the  property  from  which  or  the  party  from  whom  he  has  reason 
to*  believe  a  tax  under  this  act  is  due  and  unpaid.  (Eev.  Stats.  1909,  p. 
1902.) 

§  531.    Allowance  for  Expenses  Incurred. 

Sec.  18.  Whenever  the  county  judge  of  any  county  shall  certify  that 
there  was  probable  cause  for  issuing  a  summons  and  taking  the  proceedings 
specified  in  sections  15  and  16  of  this  act,  the  state  treasurer  shall  pay  or 
allow  to  the  treasury  of  any  county  all  expenses  incurred  for  service  of 
summons  and  his  other  lawful  disbursements  that  have  not  otherwise  been 
paid.  (Eev.  Stats.  1909,  p.  1902.) 

§  532.     Record  to  be  Kept  In  Office  of  County  Judge. 

Sec.  19.  The  treasurer  of  the  state  shall  furnish  to  each  county  judge  a 
book,  in  which  he  shall  enter  the  returns  made  by  appraisers,  the  cash  value 
of  annuities,  life  estates  and  terms  of  years  and  other  property  fixed  by 
him,  and  the  tax  assessed  thereon  and  the  amounts  of  any  receipts  for  pay- 
ments thereof  filed  with  him,  which  books  shall  be  kept  in  the  office  of  the 
county  judge  as  a  public  record.  (Eev.  Stats.  1909,  p.  1902.) 

§  533.    Payment  by  County  Treasurer  to  State  Treasurer — Receipts. 

Sec.  20.  The  treasurer  of  each  county  shall  collect  and  pay  to  the  state 
treasurer  all  taxes  that  may  be  due  and  payable  under  this  act,  who  shall 
give  him  a  receipt  therefor,  of  which  collection  and  payment  he  shall  make 
a  report  under  oath  to  the  auditor  of  public  accounts,  on  the  first  Monday 
in  March  and  September  of  each  year,  stating  for  what  estate  paid,  and  in 
such  form  and  containing  such  particulars  as  the  auditor  may  prescribe; 
and  for  all  said  taxes  collected  by  him  and  not  paid  to  the  state  treasurer 


ILLINOIS  STATUTE.  453 

by  the  first  day  of  October  and  April  of  each  year,  he  shall  pay  interest  at 
the  rate  of  ten  per  cent  per  annum.     (Rev.  Stats.  1909,  p.  1902.) 

§  534.    Commissions  of  County  Treasurer. 

Sec.  21.  The  treasurer  of  each  county  shall  be  allowed  to  retain  two 
per  cent  on  all  taxes  paid  and  accounted  for  by  him  under  this  act  in  full 
for  his  services  in  collecting  and  paying  the  same,  in  addition  to  his  salary 
or  fees  now  allowed  by  law.  (Rev.  Stats.  1909,  p.  1902.) 

§  535.    Receipts  for  Payment  of  Tax. 

Sec.  22.  Any  person  or  body  politic  or  corporate  shall,  upon  the  pay- 
ment of  the  sum  of  fifty  cents,  be  entitled  to  a  receipt  from  the  county 
treasurer  of  any  county  or  the  copy  of  the  receipt  at  his  option  that  may 
have  been  given  by  said  treasurer  for  the  payment  of  any  tax  under  this 
act,  to  be  sealed  with  the  seal  of  his  office,  which  receipt  shall  designate 
on  what  real  property,  if  any,  of  which  any.  deceased  may  have  died  seised, 
said  tax  has  been  paid  and  by  whom  paid,  and  whether  or  not  it  is  in  full 
of  said  tax;  and  said  receipt  may  be  recorded  in  the  clerk's  office  of  said 
county  in  which  the  property  may  be  situated,  in  a  book  to  be  kept  by 
said  clerk  for  such  purpose.  (Rev.  Stats.  1909,  p.  1902.) 

§  536.     Proceedings  to  Determine  Whether  Transfer  Subject  to  Tax. 

Sec.  23.  When  any  person  interested  in  any  property  in  this  state,  which 
shall  have  been  transferred  within  the  meaning  of  this  act  shall  deem  the 
same  not  subject  to  any  tax  under  this  act,  he  may  file  his  petition  in  the 
county  court  of  the  proper  county  to  determine  whether  said  property  is 
subject  to  the  tax  herein  provided,  in  which  petition  the  county  treasurer 
and  all  persons  known  to  have  or  claim  any  interest  in  said  property  shall 
be  made  parties.  The  county  court  may  hear  the  said  cause  upon  the  rela- 
tion of  the  parties  and  the  testimony  of  witnesses,  and  evidence  produced 
in  open  court,  and,  if  the  court  shall  find  said  property  is  not  subject  to 
any  tax,  as  herein  provided,  the  court  shall,  by  order,  so  determine;  but  if 
it  shall  appear  that  said  property,  or  any  part  thereof,  is  subject  to  any 
such  tax,  the  same  shall  be  appraised  and  taxed  as  in  other  cases.  An 
adjudication  by  the  county  court,  as  herein  provided,  shall  be  conclusive  as 
to  the  lien  of  the  tax  herein  provided  upon  said  property,  subject  to  appeal 
to  the  supreme  court  of  the  state  by  the  county  treasurer,  or  attorney  gen- 
eral of  the  state,  in  behalf  of  the  people,  or  by  any  party  having  an  interest 
in  said  property.  The  fees  and  costs  in  all  cases  arising  under  this  section 
shall  be  the  same  as  are  now  or  may  hereafter  be  allowed  by  law  in  cases 
at  law  in  the  county  court.  (Rev.  Stats.  1909,  p.  1903.) 

§  537.     Lien  of  Tax. 

Sec.  24.  The  lien  of  the  collateral  inheritance  tax  shall  continue  until 
the  said  tax  is  settled  and  satisfied;  provided,  that  said  lien  shall  be  limited 
to  the  property  chargeable  therewith ;  and,  provided,  further,  that  all 
inheritance  taxes  shall  be  sued  for  within  five  years  after  they  are  due  and 
legally  demandable,  otherwise  they  shall  be  presumed  to  be  paid  and  cease 


4541  INHERITANCE  TAXATION. 

to  be  a  lien  as  against  any  purchaser  of  real  estate.     (Rev.  Stats.  1909, 
p.  1903.) 

§  538.    Contingent  or  Expectant  Estates. 

Sec.  25.  When  property  is  transferred  or  limited  in  trust  or  otherwise, 
and  the  rights,  interest  or  estates  of  the  transferees  or  beneficiaries  are 
dependent  upon  contingencies  or  conditions  whereby  they  may  be  wholly 
or  in  part  created,  defeated,  extended  or  abridged,  a  tax  shall  be  imposed 
upon  said  transfer  at  the  highest  rate  which,  on  the  happening  of  any  of 
the  said  contingencies  or  conditions,  would  be  possible  under  the  provisions 
of  this  article,  and  such  tax  so  imposed  shall  be  due  and  payable  forthwith 
by  the  executors  or  trustees  out  of  the  property  transferred;  provided, 
however,  that  on  the  happening  of  any  contingency  whereby  the  said  prop- 
erty, or  any  part  thereof  is  transferred  to  a  person,  corporation  or  institu- 
tion exempt  from  taxation  under  the  provisions  of  the  inheritance  tax  laws 
of  this  state,  or  to  any  person,  corporation  or  institution  taxable  at  a  rate 
less  than  the  rate  imposed  and  paid,  such  person,  corporation  or  institution 
shall  be  entitled  to  a  return  of  so  much  of  the  tax  imposed  and  paid  as  is 
the  difference  between  the  amount  paid  and  the  amount  which  said  person, 
corporation  or  institution  should  pay  under  the  inheritance  tax  laws,  with 
interest  thereon  at  the  rate  of  three  per  centum  per  annum  from  the  time 
of  payment.  Such  return  of  over-payment  shall  be  made  in  the  manner 
provided  for  refunds  under  section  eight. 

Estate  or  interests  in  expectancy  which  are  contingent  or  defeasible  and 
in  which  proceedings  for  the  determination  of  the  tax  have  not  been  taken 
or  where  the  taxation  thereof  has  been  held  in  abeyance,  shall  be  appraised 
at  their  full,  undiminished  value  when  the  persons  entitled  thereto  shall 
come  into  the  beneficial  enjoyment  or  possession  thereof,  without  diminu- 
tion for  or  on  account  of  any  valuation  theretofore  made  of  the  particular 
estates  for  the  purposes  of  taxation,  upon  which  said  estates  or  interests 
in  expectancy  may  have  been  limited. 

Where  an  estate  for  life  or  for  years  can  be  devested  by  the  act  or  omis' 
sion  of  the  legatee  or  devisee  it  shall  be  taxed  as  if  there  were  no  possibility 
of  such  devesting.  (Eev.  Stats.  1909,  p.  1903.) 

§  539.  Computation  of  Taxes  on  Expectant  Estates  Under  Former  Statute. 
Sec.  26.  The  state  treasurer,  by  and  with  the  consent  of  the  attorney 
general  expressed  in  writing,  is  hereby  empowered  and  authorized  to  enter 
into  an  agreement  with  the  trustees  of  any  estate  in  which  remainders  or 
expectant  estates  have  been  of  such  a  nature,  or  so  disposed  and  circum- 
stanced that  the  taxes  therein  were  held  not  presently  payable,  or  where 
the  interests  of  the  legatees  or  devisees  were  not  ascertainable  under  an 
act  to  tax  gifts,  legacies,  and  inheritances,  etc.,  in  force  July  1,  1885,  and 
amendments  thereto;  and  to  compound  such  taxes  upon  such  terms  as  may 
be  deemed  equitable  and  expedient;  and  to  grant  discharge  to  said  trustees 
upon  the  payment  of  the  taxes  provided  for  in  such  composition;  provided, 
however,  that  no  such  composition  shall  be  conclusive,  in  favor  of  said 
trustees  as  against  the  interests  of  such  cestuis  que  trust  as  may  possess 


ILLINOIS  STATUTE.  455 

either  present  rights  of  enjoyment,  or  fixed,  absolute  or  indefeasible  rights 
of  future  enjoyment,  or  of  such  as  would  possess  such  rights  in  the  event 
of  the  immediate  termination  of  particular  estates,  unless  they  consent 
thereto,  either  personally,  when  competent,  or  by  guardian.  Composition 
or  settlement  made  or  effected  under  the  provisions  of  this  section  shall  be 
executed  in  triplicate,  and  one  copy  filed  in  the  office  of  the  state  treasurer, 
one  copy  in  the  office  of  the  clerk  of  the  county  court  wherein  the  appraise- 
ment was  had  or  the  tax  was  paid,  and  one  copy  delivered  to  the  executors, 
administrators  or  trustees  who  shall  be  parties  thereto.  (Rev.  Stats.  1909, 
p.  1903.) 

§  540.    Guardian  for  Person  Under  Disability. 

Sec.  27.  If  it  appears  at  any  stage  of  an  inheritance  tax  proceeding 
that  any  person  known  to  be  interested  therein  is  an  infant  or  person  under 
disability,  the  county  judge  may  appoint  a  special  guardian  of  such  infant 
or  person  under  disability.  (Rev.  Stats.  1909,  p.  1904.) 

§  541.     Transfers  Exempt  from  Tax. 

Sec.  28.  When  the  beneficial  interests  of  any  property  or  income  there- 
from shall  pass  to  or  for  the  use  of  any  hospital,  religious,  educational, 
Bible,  missionary,  tract,  scientific,  benevolent  or  charitable  purpose,  or  to 
any  trustee,  bishop  or  minister  of  any  church  or  religious  denomination,  held 
and  used  exclusively  for  the  religious,  educational  or  charitable  uses  and 
purposes  of  such  church  or  religious  denomination,  institution  or  corpora- 
tion, by  grant,  gift,  bequest  or  otherwise,  the  same  shall  not  be  subject  to 
any  such  duty  or  tax,  but  this  provision  shall  not  apply  to  any  corporation 
which  has  the  right  to  make  dividends  or  distribute  profits  or  assets  among 
its  members.  (Rev.  Stats.  1909,  p.  1904.) 

§  542.    Transfers  by  Deed,  Instrument  or  Memoranda. 

Sec.  29.  When  property,  or  any  interest  therein  or  income  therefrom,  shall 
pass  to  or  for  the  use  of  any  person,  institution  or  corporation  by  the  death 
of  another,  by  deed,  instrument  or  memoranda,  such  passing  shall  be  deemed 
a  transfer  within  the  meaning  of  this  act,  and  taxable  at  the  same  rates,  and 
be  appraised  in  the  same  manner  and  subjected  to  the  same  duties  and  liabili- 
ties as  any  other  form  of  transfer  provided  in  this  act.  (Rev.  Stats.  1909, 
p.  1904.) 

§  543.    Certified  Copies  of  Papers. 

Sec.  30.  On  the  written  request  of  the  county  treasurer  or  county  judge, 
in  the  county  wherein  an  appraisement  has  been  initiated,  the  clerk  of  the 
county  court  and  in  counties  having  a  probate  court,  the  clerk  of  the  probate 
court  and  the  recorder  of  deeds  shall  furnish  certified  copies  of  all  papers 
within  their  care  or  custody,  or  records  material  in  the  particular  appraisement, 
and  the  said  clerk  and  recorder  shall  receive  the  same  fee  or  compensation  for 
such  certified  copies  as  they  would  be  entitled  by  law  in  other  cases,  which 
shall  be  paid  to  them  by  the  county  treasurer  of  the  proper  county,  out  of 
moneys  in  his  hands  on  account  of  inheritance  tax  collections,  on  the  present*- 


456  INHERITANCE  TAXATION. 

tion  of  itemized  bills  therefor,  approved  by  the  county  judge  of  the  proper 
county.     (Rev.  Stats.  1909,  p.  1904.) 

§  544.    Repeal  of  Other  Statutes. 

Sec.  31.  That  "An  act  to  tax  gifts,  legacies  and  inheritances  in  certain 
cases,  and  to  provide  for  the  collection  of  the  same,"  approved  June  15,  1895, 
in  force  July  1,  1895,  as  amended  by  act  approved  May  10,  1901,  in  force  July 
1,  1901,  and  all  laws  or  parts  of  laws  inconsistent  herewith  be  and  the  same 
are  hereby  repealed ;  provided,  however,  that  such  repeal  shall  in  no  wise  affect 
any  suit,  prosecution  or  court  proceeding  pending  at  the  time  this  act  shall 
take  effect,  or  any  right  which  the  state  of  Illinois  may  have  at  the  time  of 
the  taking  effect  of  this  act,  to  claim  a  tax  upon  any  property  under  the  provi- 
sions of  the  act  or  acts  hereby  repealed,  for  which  no  proceeding  has  been  com- 
menced; and  all  appeals  and  rights  of  appeal  in  all  suits  pending,  or  appeals 
from  assessments  of  tax  made  by  appraisers'  reports,  orders  fixing  tax  or 
otherwise  existing  in  this  state  at  the  time  of  the  taking  effect  of  this  act. 
(Rev.  Stats.  1909,  p.  3904.) 


IOWA  STATUTE.  457 

CHAPTER  XXX. 
IOWA  STATUTE. 

(Supplement  Code  1907,  pp.  S07-S14;  Laws  of  1909,  p.  SI;  Laws  of  1911, 

pp.  50-64.) 

§  545.  Transfers    Subject    to    Tax — Bates — Persons    Liable — Lien — Time    of 

Payment. 

§  546.  Exemptions  from  Tax. 

§  547.  Deduction  of  Debts. 

§  548.  Collection  of  Tax  When  No  Administrator  Appointed. 

§  549.  Appointment  and  Qualification  of  Appraisers. 

§  550.  Issuance  of  Commission  to  Appraisers. 

§  551.  Notice  of  Appraisement — Returns  Filed. 

§  552.  Objections  to  Appraisement. 

§  553.  Appraisement  of  Property — Market  Value — Deduction  of  Debts. 

§  554.  Belief  from  Appraisement. 

§  555.  Appraisement  of  Deferred  Estates  in  Beal  Property. 

§  556.  Estates  for  Years  or  for  Life  and  Bemainders  in  Beal  Property. 

§  557.  Estates  for  Years  or  for  Life  in  Personal  Property. 

§  558.  Bond  to  Secure  Payment  of  Tax  on  Deferred  Estates. 

§  559.  Terms  and  Conditions  of  Bonds. 

§  560.  Bemoval  of  Property  from  State — Penalty. 

§  561.  Value  of  Annuities,  Life,  Term,  and  Deferred  Estates. 

§  562.  Collection  of  Tax. 

§  563.  Deduction  of  Tax  from  Legacy. 

§  564.  Account  of  Executor  not  Settled  Before  Taz  Paid. 

§  565.  Jurisdiction  of  Court. 

§  566.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  567.  Legacies  Charged  upon  Beal  Estate. 

§  568.  Interest  on  Delinquent  Taxes. 

§  569.  Information  to  be  Furnished  State  Treasurer  on  Demand. 

§  570.  Lien  Book  to  be  Kept  by  Clerk  of  Court. 

§  571.  Beport  of  Executors — Entry  of  Tax  Liens. 

§  572.  Extension  of  Time  for  Appraisement. 

§  573.  Beport  by  Heirs  to  Clerk. 

§  574.  Entries  to  be  Made  by  Clerk  in  Lien  Book. 

§  575.  Clerk  to  Keep  Probate  Becord. 

§  576.  Clerk  to  Beport  Estates  Subject  to  Tax — Fees. 

§  577.  Duties  of  County  Attorney — Compensation. 

§  578.  Settlement  of  Conflicting  Claims  for  Fees. 

§  579.  Enforcement  of  Payment  of  Tax. 

§  580.  Costs  Taxed  to  Estates. 

§  581.  Delivery  or  Transfer  of  Securities  or  Deposits — Notice. 

§  582.  Transfers  of  Corporate  Stock — Liability  of  Corporation. 

§  583.  Corporations  to  Beport  Certain  Stock  Transfers  to  State  Treasurer. 

§  584.  Foreign  Estates — Deduction  of  Debts. 


459  INHERITANCE  TAXATION. 

i  585.  Property  of  Foreign  Estates  not  Specifically  Devised. 

§  586.  Approval  cf  Compromise  Settlement. 

§  587.  Unknown  Heirs. 

§  588.  Befund  of  Tax. 

§  589.  Contingent  Estates,  Devises  or  Legacies. 

§  590.  Definitions  of  Terms. 

§  591.  Eecords  to  be  Kept  by  State  Treasurer. 

§  592.  Eepeal  of  Conflicting  Statutes, 

§  545.    Transfers  Subject  to  Tax — Bates — Persons  Liable — Lien — Time  of 

Payment. 

Sec.  1.  The  ©states  of  all  deceased  persons,  whether  they  be  inhabitants  of 
this  state  or  not,  and  whether  such  estate  consists  of  real,  personal  or  mixed 
property,  tangible  or  intangible,  and  any  interest  in,  or  income  from  any 
such  estate  or  property,  which  property  is,  at  the  death  of  the  decedent  owner, 
within  this  state  or  is  subject  to,  or  thereafter,  for  the  purpose  of  distribution, 
is  brought  within  this  state  and  becomes  subject  to  the  jurisdiction  of  the 
courts  of  this  state,  or  the  property  of  any  decedent,  domiciled  within  this 
state  at  the  time  of  the  death  of  such  decedent,  even  though  the  property  of 
such  decedent  so  domiciled  was  situated  outside  of  the  state,  except  real 
estate  located  outside  of  the  state  passing  in  fee  from  the  decedent  owner, 
which  shall  pass  by  will  or  by  the  statutes  of  inheritance  of  this  or  any  other 
state  or  country,  or  by  deed,  grant,  sale,  gift,  or  transfer  made  in  contem- 
plation of  the  death  of  the  donor,  or  made  or  intended  to  take  effect  in  posses- 
sion or  enjoyment  after  the  death  of  the  grantor,  or  donor,  to  any  person,  or 
for  the  use  in  trust  or  otherwise,  other  than  to  or  for  the  use  of  persons,  or 
uses  exempt  by  this  act  shall  be  subject  to  a  tax  of  five  per  centum;  provided, 
however,  that  when  property  or  any  interest  therein  shall  pass  to  heirs,  devisees 
or  other  beneficiaries  subject  to  the  tax  imposed  by  this  act  who  are  aliens, 
nonresidents  of  the  United  States,  the  same  shall  be  subject  to  a  tax  of  twenty 
per  centum  of  its  true  value  except  when  such  foreign  beneficiaries  are  brothers 
or  sisters  of  the  decedent  owner,  when  the  rate  of  tax  to  be  assessed  and 
collected  therefrom  shall  be  ten  per  centum  of  the  value  of  the  property  or 
interest  so  passing.  Any  person  beneficially  entitled  to  any  property  or  interest 
therein  because  of  any  such  gift,  legacy,  devise,  annuity,  transfer  or  inherit- 
ance, and  all  administrators,  executors,  referees  and  trustees,  and  any  such 
grantee  under  a  conveyance,  and  any  such  donee  under  a  gift,  and  any  such 
legatee,  annuitant,  devisee,  heir  or  beneficiary,  shall  be  respectively  liable  for 
all  such  taxes  to  be  paid  by  them  respectively.  The  tax  aforesaid  shall  be  for 
the  use  of  the  state,  shall  accrue  at  the  death  of  the  decedent  owner,  and  shall 
be  paid  to  the  treasurer  of  state  within  eighteen  months  thereafter,  except 
when  otherwise  provided  in  this  act,  and  shall  be  and  remain  a  legal  charge 
against  and  a  lien  upon  such  estate,  and  any  and  all  of  the  property  thereof 
from  the  death  of  the  decedent  owner  until  paid.  (Sup.  Code  1907,  p.  307; 
Laws  1909,  p.  81;  Laws  1911,  p.  50.) 

§  546.     Exempticns  from  Tax. 

Sec.  2.     The  tax  imposed  by  this  act  shall  not  be  collected, 

1st.  When  the  entire  estate  of  the  decedent  does  not  exceed  the  sum  of  one 

thousand  dollars  after  deducting  the  debts  as  defined  in  this  act. 


IOWA  STATUTE.  459 

2d.  When  the  property  passes  to  the  husband  or  wife. 

3d.  When  the  property  passes  to  the  father,  mother,  lineal  descendant, 
adopted  child,  or  the  lineal  descendant  of  an  adopted  child  of  decedent. 

4th.  When  the  property  passes  to  educational  and  religious  societies  or 
institutions,  public  libraries  and  public  art  galleries  within  this  state  and  open 
to  the  free  use  of  the  public. 

5th.  Property  passing  to  or  for  hospitals  within  this  state  open  to  the  public, 
and  not  operated  for  gain,  or  to  societies  within  this  state  organized  for  pur- 
poses of  public  charity,  including  cemetery  associations,  but  not  including 
societies  maintained  by  fees,  dues,  or  assessments  in  whose  benefits  the  public 
may  not  share. 

6th.  Bequests  for  the  care  and  maintenance  of  the  cemetery  or  burial  lot 
of  decedent  and  his  family,  and  bequests  not  to  exceed  five  hundred  dollars 
in  any  estate,  to  or  for  the  performance  of  a  religious  service  or  services  by 
some  person  regularly  ordained,  authorized  or  licensed  by  any  religious  society 
to  perform  such  service  to  be  performed  for  or  in  behalf  of  the  testator,  or 
some  person  named  in  his  last  will,  provided  such  person  so  named  is,  or  would 
be  exempt  from  the  tax  imposed  by  this  act. 

7th.  When  the  property  passes  to  a  municipal  or  political  corporation  within 
this  state  for  a  purely  public  purpose.  (Sup.  Code  1907,  p.  309;  Laws  1911, 
p.  50.) 

§  547.    Deduction  of  Debts. 

Sec.  3.  The  term  "debts"  as  used  in  this  act  shall  include,  in  addition  to 
debts  owing  by  the  decedent  at  the  time  of  his  death,  the  local  or  state  taxes 
due  from  the  estate  in  January  of  the  year  of  his  death,  a  reasonable  sum  for 
funeral  expenses,  court  costs,  the  cost  of  appraisement  made  for  the  purpose 
of  assessing  the  collateral  inheritance  tax,  the  statutory  fees  of  executors,- 
administrators,  or  trustees  estimated  upon  the  appraised  value  of  the  property, 
the  amount  paid  by  the  executor  or  administrator  for  a  bond,  the  attorney  fee 
in  a  reasonable  amount,  to  be  approved  by  the  court,  for  the  ordinary  probate 
proceedings  in  said  estate  and  no  other  sum;  but  said  debts  shall  not  be 
deducted  unless  the  same  are  approved  and  allowed  by  the  court  within  eighteen 
months  from  the  death  of  the  decedent,  as  established  claims  against  the  estate, 
unless  otherwise  ordered  by  the  judge  or  court  of  the  proper  county.  (Sup. 
Code  1907,  p.  309;  Laws  1911,  p.  51.) 

§  548.    Collection  of  Tax  When  No  Administrator  Appointed. 

Sec.  4.  If  upon  the  death  of  any  person  leaving  an  estate  that  may  be 
liable  to  a  tax  under  the  provisions  of  this  act,  a  will  disposing  of  such  estate 
As  not  offered  for  probate,  or  an  application  for  administration  made  within 
four  months  from  the  time  of  such  decease,  the  treasurer  of  state  may,  at  any 
time  thereafter,  make  application  to  the  proper  court,  setting  forth  such  fact 
and  praying  that  an  administrator  may  be  appointed,  and  thereupon  said  court 
shall  appoint  an  administrator  to  administer  upon  such  estate.  When  the 
heirs  or  persons  entitled  to  inherit  the  property  of  an  estate  subject  to  the  tax 
hereby  imposed,  desire  to  avoid  the  appointment  vof  an  administrator  as  pro- 
vided in  this  section,  they  or  one  of  them  shall,  before  the  expiration  of  four 


460  INHERITANCE  TAXATION.  , 

months  from  the  death  of  the  decedent  file  under  oath  the  inventories  and 
reports  and  perform  all  the  duties  required  by  this  act,  of  administrators, 
including  the  filing  of  the  lien;  proceedings  for  the  collection  of  the  tax  when 
no  administrator  is  appointed,  shall  conform  as  nearly  as  may  be  to  the  provi- 
sions of  this  act  in  other  cases.  A  nonresident  of  this  state  shall  not  be 
appointed  as  executor,  administrator  or  trustee  of  any  estate  that  may  be 
subject  to  the  tax  imposed  by  this  act,  unless  such  nonresident  first  file  a  bond 
conditioned  upon  the  payment  of  all  tax,  interest  and  costs  for  which  the  estate 
may  be  liable,  such  bond  to  be  signed  by  not  less  than  two  resident  freeholders 
or  by  an  approved  surety  company  and  in  an  amount  not  less  than  twenty-five 
per  cent  (25%)  of  the  total  value  of  the  estate,  or  of  the  property  within 
this  state  if  the  estate  is  a  foreign  estate.  (Laws  1911,  p.  52.) 

§  549.    Appointment  and  Qualification  of  Appraisers. 

Sec.  5.  In  each  county,  the  court  shall  annually  at  the  first  term  of  the 
court  therein  appoint  three  competent  residents  and  freeholders  of  said  county, 
to  act  as  appraisers  of  all  property  within  its  jurisdiction  which  is  charged  or 
sought  to  be  charged  with  the  collateral  inheritance  tax.  Said  appraisers  shall 
serve  for  one  year,  and  until  their  successors  are  appointed  and  qualified.  They 
shall  each  take  an  oath  to  faithfully  and  impartially  perform  the  duties  of  the 
office,  but  shall  not  be  required  to  give  bond.  They  shall  be  subject  to  removal 
at  any  time  at  the  discretion  of  the  court,  and  the  court  or  judge  thereof  in 
vacation,  may  also  in  its  discretion,  either  before  or  after  the  appointment  of 
the  regular  appraisers,  appoint  other  appraisers  to  act  in  any  given  case. 
Vacancies  occurring  otherwise  than  by  expiration  of  term,  shall  be  filled  by  the 
appointment  of  the  court  or  by  a  judge  in  vacation.  No  person  interested  in 
any  manner  in  the  estate  to  be  appraised  may  serve  as  an  appraiser  of  such 
estate.  (Laws  1911,  p.  52.) 

§  550.    Issuance  of  Commission  to  Appraisers. 

Sec.  6.  Whenever  it  appears  that  an  estate  or  any  property  or  interest 
therein  is  or  may  be  subject  to  the  tax  imposed  by  this  act,  the  clerk  shall  issue 
a  commission  to  the  appraisers,  who  shall  fix  a  time  and  place  for  appraise- 
ment, except  that  if  the  only  interest  that  is  subject  to  such  tax  is  a  remainder 
or  deferred  interest  upon  which  the  tax  is  not  payable  until  the  determination 
of  a  prior  estate  or  interest  for  life  or  term  of  years,  he  shall  not  issue  such 
commission  until  the  determination  of  such  prior  estate,  except  at  the  request 
of  parties  in  interest  who  desire  to  remove  the  lien  thereon.  (Laws  1911, 
p.  52.) 

§  551.    Notice  of  Appraisement — Returns  Filed. 

Sec.  7.  It  shall  be  the  duty  of  all  appraisers  appointed  under  the  provisions 
of  this  act,  upon  receiving  a  commission  as  herein  provided,  to  forthwith 
give  notice  to  the  treasurer  of  state  and  other  persons  known  to  be  interested 
in  the  property  to  be  appraised,  of  the  time  and  place  at  which  they  will 
appraise  such  property,  which  time  shall  not  be  less  than  ten  days  from  the 
date  of  such  notice.  The  notice  shall  be  served  in  the  same  manner  as  is  pre- 
scribed for  the  commencement  of  civil  actions,  and  if  not  practicable  to  serve 


IOWA  STATUTE.  461 

the  notice  provided  for  by  statute,  they  shall  apply  to  the  court  or  a  judge 
thereof  in  vacation  for  an  order  as  to  notice  and  upon  service  of  such  notice 
and  the  making  of  such  appraisement,  the  said  notice,  return  thereon  and 
appraisement  shall  be  filed  with  the  clerk,  and  a  copy  of  such  appraisement 
shall  at  once  be  filed  by  the  clerk  with  the  treasurer  of  state.  When  property 
is  located  in  more  than  one  county,  the  appraisers  of  the  county  in  which  the 
estate  is  being  administered  may  appraise  the  whole  estate,  or  those  of  the 
several  counties  may  serve  for  the  property  within  their  respective  counties  or 
other  appraisers  be  appointed  as  the  district  court  if  in  session,  or  judge  thereof 
in  vacation  may  direct.  (Laws  1911,  p.  52.) 

§  552.     Objections  to  Appraisement. 

Sec.  8.  The  treasurer  of  state  or  any  person  interested  in  the  estate  or 
property  appraised,  may  within  twenty  days  thereafter,  file  objections  to  said 
appraisement  and  give  notice  thereof  as  in  beginning  civil  actions,  on  the 
hearing  of  which  as  an  action  in  equity  either  party  may  produce  evidence 
competent  or  material  to  the  matters  therein  involved.  If  upon  such  hearing 
the  court  finds  the  amount  at  which  the  property  is  appraised  is  its  value  on 
the  market  in  the  ordinary  course  of  trade,  and  the  appraisement  was  fairly 
and  in  good  faith  made,  it  shall  approve  such  appraisement;  but  if  it  finds 
that  the  appraisement  was  made  at  a  greater  or  less  sum  than  the  value  of  the 
property  in'the  ordinary  course  of  trade,  or  that  the  same  was  not  fairly  or  in 
good  faith  made,  it  shall  set  aside  the  appraisement,  appoint  new  appraisers 
and  so  proceed  until  a  fair  and  good  appraisement  of  the  property  is  made 
at  its  value  in  the  market  in  the  ordinary  course  of  trade.  The  treasurer  of 
state  or  anyone  interested  in  the  property  appraised,  may  appeal  to  the  supreme 
court  from  the  order  of  the  district  court  approving  or  setting  aside  any  ap- 
praisement to  which  exceptions  have  been  filed.  Notice  of  appeal  shall  be 
served  within  sixty  days  from  the  date  of  the  order  appealed  from,  and  the 
appeal  shall  be  perfected  in  the  time  now  provided  for  appeals  in  equitable 
actions.  In  case  of  appeal  the  appellant,  if  he  is  not  the  treasurer  of  state 
shall  give  bond  to  be  approved  by  the  clerk  of  the  court,  which  bond  shall 
provide  that  the  said  appellant  and  sureties  shall  pay  the  tax  for  which  the 
property  may  be  liable  with  cost  of  appeal.  If  upon  the  hearing  of  objections 
to  the  appraisement,  the  court  finds  that  the  property  is  not  subject  to  the  tax, 
the  court  shall  upon  expiration  of  time  for  appeal,  when  no  appeal  has  been 
taken,  order  the  clerk  to  enter  upon  the  lien  book  a  cancellation  of  any  claim 
or  lien  for  taxes.  If  at  the  end  of  twenty  days  from  the  filing  of  the  appraise- 
ment with  the  clerk,  no  objections  are  filed,  the  appraisement  shall  stand  ap- 
proved. (Laws  1911,  p.  52.) 

§  553.    Appraisement  of  Property — Market  Value — Deduction  of  Debts. 

Sec.  9.  Within  ninety  days  after  the  transfer  of  any  property  that  may  be 
liable  for  a  tax  under  the  provisions  of  this  act,  except  as  herein  otherwise  pror 
vided,  the  clerk  of  the  proper  county  upon  his  own  motion  or  upon  the  applica- 
tion of  the  treasurer  of  state,  county  attorney,  or  person  interested  in  the 
property,  shall  cause  the  property  to  be  appraised  as  provided  herein.  If  there 
be  an  estate  or  property  subject  to  said  tax  wherein  the  records  in  the  elerk'a 


462  INHERITANCE  TAXATION. 

office  do  not  disclose  that  there  may  be  a  tax  due  under  the  provisions  of  this 
act,  the  person  or  persons  interested  in  the  property  shall  report  the  matter 
to  the  clerk  with  an  application  that  the  property  be  appraised.  The  appraised 
value  of  the  property  shall  in  all  cases  be  its  market  value  in  the  ordinary 
course  of  trade,  and  in  domestic  estates  the  tax  shall  be  calculated  thereon 
after  deducting  the  debts  as  defined  herein;  provided,  however,  that  the  debt 
of  a  domestic  estate  owing  for  or  secured  by  property  outside  of  the  state,  shall 
not  be  deducted  before  estimating  the  tax,  except  when  the  property  for  which 
the  debt  is  owing  or  by  which  it  is  secured  is  subject  to  the  tax  imposed  by 
this  act,  or  when  the  foreign  debt  exceeds  the  value  of  the  property  securing 
it  or  for  which  it  was  contracted,  then  the  excess  may  be  deducted  provided 
that  satisfactory  proof  of  the  value  of  the  foreign  property  and  the  amount  of 
such  debt  is  furnished  to  the  treasurer  of  state.  (Laws  1911,  p.  53.) 

§  554.    Belief  from  Appraisement. 

Sec.  10.  All  estates  subject  in  whole  or  in  part  to  the  tax  imposed  by  this 
act  shall  be  appraised  for  the  purpose  of  computing  said  tax  by  the  regular 
collateral  inheritance  tax  appraisers;  provided,  that  estates  liable  for  the  pay- 
ment of  the  inheritance  tax  upon  specific  legacies,  annuities,  bequests  of  money 
or  other  property  the  value  of  which  may  be  determined  without  appraisement, 
and  estates  which  consist  of  money,  book  accounts,  bank  deposits,  notes,  mort- 
gages and  bonds,  need  not  be  appraised  by  the  collateral  inheritance  tax 
appraisers  if  the  administrator,  executor  or  trustee  or  the  persons  entitled  to 
or  claiming  such  property  are  willing  to  charge  themselves  with  the  full  face 
value  of  such  bequests  or  property,  together  with  the  interest,  earnings  or 
undivided  profits  which  may  be  due  on  said  properties,  at  the  time  of  death 
of  the  testator  or  intestate,  as  the  basis  for  the  assessment  of  said  tax,  but  in 
all  cases  the  relief  from  appraisement  for  the  collateral  inheritance  tax  is 
dependent  upon  the  consent  of  the  treasurer  of  state,  and  the  subsequent 
approval  thereof  by  the  court  or  judge  thereof  in  vacation.  In  the  event  that 
the  estate  has  been  duly  appraised  under  the  ordinary  statutes  of  inheritance 
or  the  property  has  been  sold  and  such  appraisement  or  selling  price  is  accepted 
by  the  treasurer  of  state  as  satisfactory  for  collateral  inheritance  tax  pur- 
poses, the  court  or  judge  thereof  in  vacation  may,  upon  proper  application, 
relieve  the  estate  from  the  appraisement  by  the  collateral  inheritance  tax 
appraisers;  but  in  order  to  obtain  such  relief,  the  administrator,  executor, 
trustee  or  other  party  interested  must  file  an  application  for  relief  with  the 
consent  of  the  treasurer  of  state  thereto  in  the  office  of  the  clerk  of  the  court 
before  said  clerk  issues  a  commission  to  the  collateral  inheritance  tax  apprais- 
ers. The  court  or  judge  thereof  in  vacation  may,  upon  application  of  the 
representatives  of  the  estate  or  parties  interested,  relieve  the  estate  of  the 
appraisement  for  collateral  tax  purposes  if  it  be  shown  to  said  court  that  the 
market  value  of  the  entire  estate  will  not  exceed  one  thousand  dollars;  pro- 
vided, that  prior  to  the  application  to  said  court  or  judge  the  written  consent 
of  the  treasurer  of  state  to  such  relief  is  procured.  In  all  cases  where  an  estate 
is  relieved  from  an  appraisement  for  collateral  inheritance  tax  purposes,  the 
order  granting  relief  shall  be  recorded  in  the  clerk's  office,  and  the  fact  of  such 
relief  and  reasons  therefor  shall  be  duly  noted  in  the  decree  or  order  of  final 
settlement  made  by  the  court.  (Laws  1911,  p.  53.) 


IOWA  STATUTE.  463 

§  555.    Appraisement  of  Deferred  Estates  in  Real  Property. 

Sec.  11.  When  any  person,  whose  estate  over  and  above  the  amount  of  his 
debts,  as  denned  in  this  act,  exceeds  the  sum  of  one  thousand  dollars,  shall 
bequeath  or  devise  any  real  property  to  or  for  the  use  of  persons  exempt  from 
the  tax  imposed  by  this  act,  during  life  or  for  a  term  of  years,  and  the  re- 
mainder to  a  collateral  heir,  said  property  upon  the  determination  of  such 
estate  for  life  or  years,  shall  be  appraised  at  its  then  actual  market  value  from 
which  shall  be  deducted  the  value  of  any  improvements  thereon,  or  betterments 
thereto,  if  any,  made  by  the  remainderman  during  the  time  of  the  prior  estate, 
to  be  ascertained  and  determined  by  the  appraisers  and  the  tax  on  the  remain- 
der shall  be  paid  by  such  remainderman  as  provided  in  the  next  succeeding 
section.  (Laws  1911,  p.  54.) 

§  556.    Estates  for  Years  or  for  Life  and  Remainders  In  Real  Property. 

Sec.  12.  Whenever  any  real  property  of  a  decedent  shall  be  subject  to  such 
tax  and  there  be  an  estate  or  interest  for  life  or  term  of  years  given  to  a  party 
other  than  those  especially  exempt  by  this  act,  the  clerk  shall  cause  such  prop- 
erty to  be  appraised  at  the  actual  market  value  thereof,  as  is  provided  in 
ordinary  cases,  and  the  party  entitled  to  such  estate  or  interest  shall  within 
one  (1)  year  from  the  death  of  decedent  owner  pay  such  tax,  and  in  default 
thereof  the  court  shall  order  such  interest  in  said  estate,  or  so  much  thereof 
as  shall  be  necessary  to  pay  such  tax  and  interest,  to  be  sold.  Upon  the  deter- 
mination of  any  prior  estate  or  interest,  when  the  remainder  or  deferred  estate 
or  interest  or  any  part  thereof  is  subject  to  such  tax  and  the  tax  upon  such 
remainder  or  deferred  interest  has  not  been  paid,  the  person  or  persons  entitled 
to  such  remainder  or  deferred  interest  shall  immediately  report  to  the  clerk 
of  the  proper  court  the  fact  of  the  determination  of  the  prior  estate,  and  upon 
receipt  of  such  report,  or  upon  information  from  any  source,  of  the  determina- 
tion of  any  such  prior  estate  when  the  remainder  interest  has  not  been 
appraised  for  the  purpose  of  assessing  such  tax,  the  clerk  shall  forthwith 
issue  a  commission  to  the  collateral  inheritance  tax  appraisers,  who  shall  im- 
mediately proceed  to  appraise  the  property  as  provided  in  like  cases  in  the 
next  preceding  section,  and  the  tax  upon  such  remainder  interest  shall  be  paid 
by  the  remainderman  within  one  (1)  year  next  after  the  determination  of  the 
prior  estate.  If  such  tax  is  not  paid  within  said  time  the  court  shall  then 
order  said  property,  or  so  much  thereof  as  may  be  necessary  to  pay  such  tax 
and  interest,  to  be  sold.  (Laws  1911,  p.  54.) 

§  557.    Estates  for  Years  or  for  Life  in  Personal  Property. 

Sec.  13.  Whenever  any  personal  property  shall  be  subject  to  the  tax  im- 
posed by  this  act  and  there  be  an  estate  or  interest  for  life  or  term  of  years 
given  to  one  or  more  persons  and  remainder  or  deferred  estate  to  others,  the 
clerk  shall  cause  the  property  so  devised  or  conveyed  to  be  appraised  as  provided 
herein  in  ordinary  estates  and  the  value  of  the  several  estates  or  interests  so 
devised  or  conveyed  shall  be  determined  as  provided  in  section  seventeen  (17) 
of  this  act,  and  the  tax  upon  such  estates  or  interests  as  are  liable  for  the  tax 
imposed  by  this  act  shall  be  paid  to  the  treasurer  of  state  from  the  property 
appraised  or  by  the  persons  entitled  to  such  estate  or  interest  within  eighteen 


INHERITANCE  TAXATION. 

(18)  months  from  the  death  of  the  testator,  grantor,  or  donor,  provided,  how- 
ever, that  payment  of  the  tax  upon  any  deferred  estate  or  remainder  interest 
may  be  deferred  until  the  determination  of  the  prior  estate  by  the  giving  of  a 
good  and  sufficient  bond  as  provided  in  the  next  succeeding  section.  (Laws 
1911,  p.  54.) 

§  558.     Bond  to  Secure  Payment  of  Tax  on  Deferred  Estates. 

Sec.  14.  When  in  case  of  deferred  estates  or  remainder  interests  in  personal 
property  or  in  the  proceeds  of  any  real  estate  that  may  be  sold  during  the 
time  of  a  life,  term  or  prior  estate,  the  persons  interested  who  may  desire  to 
defer  the  payment  of  the  tax  until  the  determination  of  the  prior  estate,  shall 
file  with  the  clerk  of  the  proper  district  court  a  bond  as  provided  herein  in 
other  cases,  such  bond  to  be  renewed  every  two  years  until  the  tax  upon  such 
deferred  estate  is  paid.  If  at  the  end  of  any  two  year  period  the  bond  is  not 
promptly  renewed  as  herein  provided  and  the  tax  has  not  been  paid,  the  bond 
shall  be  declared  forfeited,  and  the  amount  thereof  be  forthwith  collected. 
When  the  estate  of  a  decedent  consists  in  part  of  real  and  in  part  of  personal 
property,  and  there  be  an  estate  for  life  or  for  a  term  of  years  to  one  or  more 
persons  and  a  deferred  or  remainder  estate  to  others,  and  such  deferred  or 
remainder  estate  is  in  whole  or  in  part  subject  to  the  tax  imposed  by  this  act, 
if  the  deferred  or  remainder  estates  or  interests  are  so  disposed  that  good  and 
sufficient  security  for  the  payment  of  the  tax  for  which  such  deferred  or 
remainder  estates  may  be  liable  can  be  had  because  of  the  lien  imposed  by  this 
act  upon  the  real  property  of  such  estate,  then  payment  of  the  tax  upon  such 
deferred  or  remainder  estates  may  be  postponed  until  the  determination  of  the 
prior  estate  without  giving  bond  as  herein  required  to  secure  payment  of  such 
tax,  and  the  tax  shall  remain  a  lien  upon  such  real  estate  until  this  tax  upon 
such  deferred  estate  or  interest  is  paid.  (Laws  1911,  p.  55.) 

§  559.     Terms  and  Conditions  of  Bonds. 

Sec.  15.  All  bonds  required  by  this  act  shall  be  payable  to  the  treasurer  of 
state  and  shall  be  conditioned  upon  the  payment  of  the  tax,  interest  and  costs 
for  which  the  estate  may  be  liable,  and  for  the  faithful  performance  of  all  the 
duties  hereby  imposed  upon  and  required  of  the  person  whose  acts  are  by  such 
bond  to  be  guaranteed,  and  shall  be  in  an  amount  equal  to  twice  the  amount 
of  the  tax  interest  and  costs  that  may  be  due,  but  in  no  case  less  than  five 
hundred  dollars  and  must  be  secured  by  not  less  than  two  resident  freeholders 
or  by  a  fidelity  or  surety  company  authorized  by  the  auditor  of  state  to  do 
business  in  this  state.  (Laws  1911,  p.  55.) 

§  560.     Removal  of  Property  from  State — Penalty. 

Sec.  16.  It  shall  be  unlawful  for  any  person  to  remove  from  this  state  any 
property,  or  the  proceeds  thereof,  that  may  be  subject  to  the  tar  imposed  by 
this  act,  without  paying  the  said  tax  to  the  treasurer  of  state.  Any  person 
violating  the  provisions  of  this  section  shall  be  guilty  of  a  felony  and  upon 
conviction  shall  be  fined  an  amount  equal  to  twice  the  amount  of  tax,  interest 
and  costs  for  which  the  estate  may  be  liable,  but  in  no  case  less  than  two  hun- 
dred dollars  and  imprisoned  as  the  court  shall  direct,  until  the  fine  is  paid. 


IOWA  STATUTE.  465 

Provided,  however,  that  the  penalty  hereby  imposed  shall  not  be  enforced,  if 
prior  to  the  removal  of  such  property  or  the  proceeds  thereof,  the  person  de- 
siring to  effect  such  removal  files  with  the  clerk  a  bond  conditioned  upon  the 
payment  of  the  tax,  interest  and  costs,  as  is  provided  in  the  preceding  section 
hereof.  (Laws  1911,  p.  55.) 

§  561.    Value  of  Annuities,  Life,  Term,  and  Deferred  Estates. 

Sec.  17.  The  value  of  any  annuity,  deferred  estate,  or  interest,  or  any  estate 
for  life  or  term  of  years,  subject  to  the  collateral  inheritance  tax,  shall  be 
determined  for  the  purpose  of  computing  said  tax  by  the  rule  of  standards  of 
mortality  and  of  value  commonly  used  in  actuaries'  combined  experience  tables 
as  now  provided  by  law.  The  taxable  value  of  annuities,  life  or  term,  deferred 
or  future  estates,  shall  be  computed  at  the  rate  of  four  (4)  per  cent  per  annum 
of  the  appraised  value  of  the  property  in  which  such  estate  or  interest  exists 
or  is  founded.  Whenever  it  is  desired  to  remove  the  lien  of  the  collateral 
inheritance  tax  on  remainders,  reversions,  or  deferred  estates,  parties  owning 
the  beneficial  interest  may  pay  at  any  time  the  said  tax  on  the  present  worth 
of  such  interests  determined  according  to  the  rules  herein  fixed.  (Laws  1911, 
p.  56.) 

§  562.    Collection  of  Tax. 

Sec.  18.  It  is  hereby  made  the  duty  of  all  executors,  administrators,  trus- 
tees, or  other  persons  charged  with  the  management  or  settlement  of  any  estate 
subject  to  the  tax  provided  for  in  this  act,  to  collect  and  pay  to  the  treasurer 
of  state  the  amount  of  the  tax  due  from  any  devisee,  grantee,  donee,  heir  or 
beneficiary  of  the  decedent,  except  in  cases  where  payment  of  the  tax  is  de- 
ferred until  the  determination  of  a  prior  estate  in  which  cases  the  treasurer 
of  state  shall  collect  the  same.  Executors,  administrators,  trustees,  or  the  state 
treasurer,  shall  have  power  to  sell  so  much  of  the  property  of  the  decedent  as 
will  enable  them  to  pay  said  tax,  in  the  same  manner  as  is  now  provided  by  law 
for  the  sale  of  such  property  for  the  payment  of  debts  of  testators  or  intes- 
tates. The  treasurer  of  state  may  bring,  or  cause  to  be  brought  in  his  name 
of  office,  suit,  for  the  collection  of  said  tax,  interest  and  costs,  against  the 
executor,  administrator,  or  trustee,  or  against  the  person  entitled  to  property 
subject  to  said  tax,  or  upon  any  bond  given  to  secure  payment  thereof,  either 
jointly  or  severally  and  obtaining  judgment  may  cause  execution  to  be  issued 
thereon  as  is  provided  by  statute  in  other  cases.  The  proceedings  shall  con- 
form as  nearly  as  may  be  to  those  for  the  collection  of  ordinary  debt  by  suit. 
If  because  of  necessary  litigation  or  other  unavoidable  cause  of  delay  enforced 
payment  of  the  tax  hereby  imposed,  by  suit  and  execution,  would  result  in  loss 
or  be  to  the  detriment  of  the  best  interests  of  the  estate,  the  court  may  exten  1 
the  time  for  the  payment  of  the  tax.  Such  extensions  of  time  shall  not  be 
granted  except  in  cases  where  security  is  given  for  payment  of  the  tax,  interest 
and  costs.  (Laws  1911,  p.  56.) 

§  563.    Deduction  of  Tax  from  Legacy. 

Sec.  19.     Every  executor,  administrator,  referee  or  trustee  having  in  charge 
or  trust  any  property  of  an  estate  subject  to  said  tax,  ami  which  is  made  pay- 
80 


466  INHERITANCE  TAXATION. 

able  by  him,  shall  deduct  the  tax  therefrom  or  shall  collect  the  tax  thereon  from 
the  legatee  or  person  entitled  to  said  property  and  pay  the  same  to  the  treas- 
urer of  state,  and  he  shall  not  deliver  any  specific  legacy  or  property  subject 
to  said  tax  to  any  person  until  he  has  collected  the  tax  thereon.  (Laws  1911, 
p.  56.) 

§  564.    Account  of  Executor  not  Settled  Before  Tax  Paid. 

Sec.  20.  No  final  settlement  of  the  account  of  any  executor,  administrator, 
or  trustee  shall  be  accepted  or  allowed  unless  it  shall  show,  and  the  court  shall 
find,  that  all  taxes  imposed  by  the  provisions  of  this  act  upon  any  property 
or  interest  therein,  that  is  hereby  made  payable  by  such  executors,  adminis- 
trators or  trustees,  and  to  be  settled  by  said  account,  shall  have  been  paid, 
and  the  receipt  of  the  treasurer  of  state  for  such  tax  shall  be  the  proper  voucher 
for  such  payment.  Any  order  contravening  the  provision  of  this  section  shall 
be  void.  Upon  the  filing  of  such  receipt  showing  payment  of  the  tax,  the  clerk 
shall  record  the  same  upon  the  collateral  inheritance  tax  lien  book  in  his  office. 
(Laws  1911,  p.  56.) 

§  565.    Jurisdiction  of  Court. 

Sec.  21.  The  district  court  in  the  county  in  which  some  part  of  the  property 
is  situated,  of  the  decedent  who  was  not  a  resident,  or  such  court  in  the  county 
of  which  the  deceased  was  a  resident  at  the  time  of  his  death  or  where  such 
estate  is  administered,  shall  have  jurisdiction  to  hear  and  determine  all  ques- 
tions regularly  brought  before  it  in  relation  to  said  tax  that  may  arise  affect- 
ing any  devise,  legacy,  annuity,  transfer,  grant,  gift  or  inheritance,  subject  to 
appeal  as  in  other  cases,  and  the  treasurer  of  state  shall  in  his  name  of  office, 
with  all  the  rights  and  privileges  of  a  party  in  interest,  represent  the  state  in 
any  such  proceedings.  (Laws  1911,  p.  57.) 

§  566.    Bequest  to  Executor  in  Lieu  of  Compensation. 

Sec.  22.  Whenever  a  decedent  appoints  one  or  more  executors  or  trustees 
and  in  lieu  of  their  allowance  or  commission,  makes  a  bequest  or  devise  of 
property  to  them  which  would  otherwise  be  liable  to  said  tax,  or  appoints  them 
his  residuary  legatees,  and  said  bequests,  devises  or  residuary  legacies  exceed 
the  statutory  fees  as  compensation  for  their  services,  such  excess  shall  be  liable 
to  such  tax.  (Laws  1911,  p.  57.) 

§  567.    Legacies  Charged  upon  Heal  Estate. 

Sec.  23.  Whenever  any  legacies  subject  to  said  tax  are  charged  upon  or 
payable  out  of  any  real  estate,  the  heir  or  devisee,  before  paying  the  same, 
shall  deduct  said  tax  therefrom  and  pay  it  to  the  executor,  administrator,  trus- 
tee or  treasurer  of  state,  and  the  same  shall  remain  a  charge  against  and  be 
a  lien  upon  said  real  estate  until  it  is  paid;  and  payment  thereof  shall  be  en- 
forced by  the  executor,  administrator,  trustee  or  treasurer  of  state  in  his  name 
of  office  as  herein  provided.  (Laws  1911,  p.  57.) 

§  568.     Interest  on  Delinquent  Taxes. 

Sec.  24.  All  taxes  imposed  by  this  act  shall  be  payable  to  the  treasurer  of 
state,  and  except  when  otherwise  provided  in  this  act,  shall  be  paid  within 


IOWA  STATUTE.  467 

eighteen  (18)  months  from  the  death  of  the  testator  or  intestate.  All  taxes 
not  paid  within  the  time  prescribed  in  this  act  shall  draw  interest  at  the  rate 
of  eight  per  centum  per  annum  thereafter  until  paid.  (Laws  1911,  p.  57.) 

§  569.    Information  to  be  Furnished  State  Treasurer  on  Demand. 

Sec.  25.  Before  issuing  his  receipt  for  the  tax,  the  treasurer  of  state  may 
demand  from  administrators,  executors,  trustees  or  beneficiaries  such  informa- 
tion as  may  be  necessary  to  verify  the  correctness  of  the  amount  of  the  tax 
and  interest,  and  when  such  demand  is  made  they  shall  send  to  said  treasurer 
certified  copies  of  wills,  deeds,  or  other  papers,  or  of  such  parts  of  their  re- 
ports as  he  may  demand,  and  upon  the  refusal  or  neglect  of  said  parties  to 
comply  with  the  demand  of  the  treasurer  of  state,  it  is  the  duty  of  the  clerk 
of  the  court  to  comply  with  such  demand,  and  the  expenses  of  making  such 
copies  and  transcripts  shall  be  charged  against  the  estate,  as  are  other  costs 
in  probate,  or  the  tax  may  be  assessed  without  deducting  debts  for  which  the 
estate  may  be  liable.  (Laws  1911,  p.  57.) 

§  570.    Lien  Book  to  be  Kept  by  Clerk  of  Court. 

Sec.  26.  The  clerk  of  the  district  court  in  and  for  each  county  shall  pro- 
vide and  keep  a  suitable  book,  substantially  bound  and  suitably  ruled',  to  be 
known  as  the  collateral  inheritance  tax  and  lien  book,  in  which  shall  be  kept  a 
full  and  accurate  record  of  all  proceedings  in  cases  where  property  is  charged 
or  sought  to  be  charged  with  the  payment  of  a  collateral  inheritance  tax  under 
the  laws  of  this  state,  to  be  printed  and"  ruled  so  as  to  show  upon  one  page, 

(1)  The  name,  place  of  residence,  and  date  of  death  of  the  decedent. 

(2)  Whether  the  decedent  died  testate,  or  intestate,  and  if  testate,  the  record 
and  page  where  the  will  was  probated  and  recorded. 

(3)  The  name  and  poetoffice  address  of  the  executor,  administrator,  trustee, 
or  grantee,  with  the  date  of  appointment  or  transfer. 

(4)  The  names,  postofiiee  addresses  and  relationship,  if  known,  of  all  the 
heirs,  devisees  and  grantees. 

(5)  The  appraised  valuation  of  the  personal  property. 

(6)  The  amount  of  inheritance  tax  due  upon  said  personal  property. 

(7)  A  record  of  payment  with  amount  and  date. 

(8)  Date  of  filing  objections  and  names  of  objectors. 

(9)  Blank  for  index  and  reference  to  all  proceedings  and  for  memorandum 
entries  of  the  court  or  judge  in  relation  thereto. 

Upon  the  opposite  page  of  such  record  shall  be  printed: 

(1)  Eeal  estate  derived  from  (naming  decedent)  which  is  sub- 
ject to  the  lien  prescribed  by  the  statute  for  collateral  inheritance  tax. 

(2)  A  full  and  accurate  description  of  such  real  estate,  by  forty-acre  or 
fractional  tracts,  or  by  lots,  or  other  complete  individual  description. 

(3)  The  appraised  valuation  as  reported  by  the  appraisers,  with  a  reference 
to  the  record  of  their  report,  as  to  each  piece  of  such  real  estate. 

(4)  The  amount  of  the  inheritance  tax  due  upon  each  such  piece. 

(5)  A  record  of  payments,  with  dates  and  amounts.     (Laws  1911,  p.  57.) 


468  INHERITANCE  TAXATION. 

§  571.     Report  of  Executors — Entry  of  Tax  Liens. 

Sec.  27.  Upon  the  appointment  and  qualification  of  such  executor,  admin- 
istrator and  testamentary  trustee,  the  clerk  issuing  the  letters  shall  at  the  same 
time  deliver  to  him  a  blank  form  upon  which  he  shall  bfi  required  to  make  de- 
tailed report  of  the  following  facts : 

(1)  Name  and  last  residence  of  decedent. 

(2)  Date  of  death. 

(3)  Whether  or  not  he  left  a  will. 

(4)  Name  and  postoffice  of  executor,  administrator  or  trustee. 

(5)  Name  and  postoffice  of  surviving  wife  or  husband  if  any. 

(6)  If  testate,  name  and  postoffice  of  each  beneficiary  under  the  will. 

(7)  Eelationship  of  each  beneficiary  to  the  testator. 

(8)  If  intestate,  name  and  postoffice  of  each  heir  at  law. 

(9)  Relationship  of  each  heir  at  law  to  decedent. 

(10)  Inventory  of  all  the  real  estate  of  the  decedent  giving  amount  and  de- 
scription of  each  tract. 

(11)  Whether  the  property  passes  in  possession  and  enjoyment  in  fee  for 
life  or  for  a  term  of  years. 

Within  thirty  days  after  his  qualification,  each  executor,  administrator,  and 
testamentary  trustee  shall  make  and  return  to  the  clerk,  under  oath,  a  full  and 
detailed  report  as  indicated  in  the  preceding  paragraph,  any  will  to  the  con- 
trary notwithstanding,  and  upon  his  failure  to  do  so,  the  clerk  shall  forthwith 
report  his  delinquency  to  the  district  court  if  in  session,  or  to  a  judge  of  said 
court  if  in  vacation,  for  such  order  as  may  be  necessary  to  enforce  an  observ- 
ance of  this  section.  If  it  appears  from  the  inventory  or  report  so  filed  that 
the  real  estate  or  any  part  of  it  is  subject  to  an  inheritance  tax,  it  shall  be  the 
duty  of  the  executor  or  administrator  or  of  any  person  interested  in  the  prop- 
erty if  there  be  no  administration,  to  cause  the  lien  of  the  same  to  be  entered 
upon  the  lien  book  in  the  office  of  the  clerk  of  the  court  in  each  county  where 
each  particular  tract  of  said  real  estate  is  situated,  and  when  said  real  estate 
or  any  interest  therein,  is  subject  to  such  tax,  no  conveyance  either  before  or 
after  the  entering  of  said  lien,  shall  discharge  the  real  estate  so  conveyed  from 
said  lien,  no  final  settlement  of  the  account  of  any  executor,  administrator  or 
trustee  shall  be  accepted  or  allowed  unless  a  strict  compliance  with  the  provi- 
sions of  this  section  has  been  had  by  such  person.  Upon  the  filing  of  such 
report,  the  clerk  of  the  court  shall  immediately  forward  a  true  copy  thereof 
to  the  treasurer  of  state.  (Laws  1911,  p.  58.) 

§  572.     Extension  of  Time  for  Appraisement. 

See.  28.  Whenever,  by  reason  of  the  complicated  nature  of  an  estate,  or  by 
reason  of  the  confused  condition  of  the  decedent's  affairs,  it  is  impracticable 
for  the  executor,  administrator,  trustee  or  beneficiary  of  said  estate  to  file  with 
the  clerk  of  the  court  a  full,  complete  and  itemized  inventory  of  the  personal 
assets  belonging  to  the  estate,  within  the  time  required  by  statute  for  filing 
inventories  of  the  estates,  the  court  may,  upon  the  application  of  such  repre- 
sentatives or  parties  in  interest,  extend  the  time  for  making  the  collateral  in- 
heritance appraisement  for  a  period  not  to  exceed  three  months  beyond  the 
time  fixed  by  this  act.  (Laws  1911,  p.  59.) 


IOWA  STATUTE.  469 

§  573.    Report  by  Heirs  to  Clerk. 

Sec.  29.  Whenever  any  property  passing  under  the  intestate  laws  may  be 
eubjcct  to  the  tax  imposed  by  this  act,  the  person  or  persons  entitled  to  such 
property  shall  make  or  cause  to  be  made  to  the  clerk  of  the  courts  of  the  county 
wherein  such  property  is  located,  within  ninety  days  next  following  the  death 
of  such  intestate,  a  report  in  writing  embodying  therein  substantially  the  in- 
formation required  by  the  second  preceding  section  of  this  act.  Failure  to 
furnish  such  report  or  to  probate  the  will  in  a  testate  estate,  shall  not  relieve 
the  estate  from  the  lien  created  hereby  or  the  persons  entitled  to  the  property 
of  such  decedent  from  payment  of  the  tax,  interest  or  other  penalties  imposed1 
by  this.  act.  (Laws  1911,  p.  59.) 

§  574.    Entries  to  be  Made  by  Clerk  in  Lien  Book. 

Sec.  30.  The  clerk  shall  enter  upon  the  collateral  inheritance  tax  and  lien 
book,  the  title  of  all  estates  subject  to  the  inheritance  tax  as  shown  by  the  in- 
ventories or  lists  of  heirs  filed  in  his  office,  or  as  reported  to  him  by  the  county 
attorney,  treasurer  of  state,  or  other  person,  and  shall  enter  in  said  book  as 
against  each  estate  or  title  at  the  appropriate  place,  all  such  information  relat- 
ing to  the  situation  and  condition  of  the  estate  as  he  may  be  able  to  obtain 
from  the  papers  filed  in  his  office,  or  from  any  other  source,  as  may  be  neces- 
sary to  the  collection  and  enforcement  of  the  tax.  He  shall  also  immediately 
index  in  the  book  kept  in  his  office  for  that  purpose,  all  liens  entered  upon  the 
collateral  inheritance  tax  and  lien  book.  Failure  to  make  such  entries  as  are 
herein  required,  shall  not  operate  to  relieve  the  estate  from  the  lien  or  defeat 
the  collection  of  the  tax.  (Laws  1911,  p.  59.) 

§  575.     Clerk  to  Keep  Probate  Record. 

Sec.  31.  In  all  cases  entered  upon  the  inheritance  tax  and  lien  book,  the 
clerk  shall  make  a  complete  record  in  the  proper  probate  record,  of  all  the  pro- 
ceedings, orders,  reports,  inventory,  appraisements  and  all  other  matters  and 
proceedings  therein.  (Laws  1911,  p.  59.) 

§  576.    Clerk  to  Report  Estates  Subject  to  Tax — Fees. 

Sec.  32.  It  shall  be  the  duty  of  each  clerk  of  the  district  court  to  make 
examination  from  time  to  time  of  all  reports  filed  with  him  by  administrators, 
executors  and  trustees,  pursuant  to  law;  also  to  make  examination  of  all  for- 
eign wills  offered  for  probate  or  recorded  within  his  county,  as  well  as  of  the 
record  of  deeds  and  conveyances  in  the  recorder's  office  of  said  county,  and  if 
from  such  examination  or  from  information  or  knowledge  coming  to  him  from 
any  other  source,  he  finds  or  believes  that  any  property  within  his  county,  or 
within  the  jurisdiction  of  the  district  court  of  said  county  has,  since  July  4, 
1896,  passed  by  will  or  by  the  intestate  laws  of  this  or  any  other  state,  or  by 
deed  or  other  method  of  conveyance,  made  in  anticipation  of  or  intended  to 
take  effect,  in  possession  or  in  enjoyment  after  the  death  of  the  testator,  donor 
or  grantor,  to  any  person  other  than  to  or  for  the  use  of  the  persons,  societies, 
or  organizations  exempt  from  the  tax  hereby  imposed),  he  shall  make  report 
thereof  in  writing  to  the  treasurer  of  state,  embodying  in  such  report  such  in- 
formation as  he  may  be  able  to  obtain  as  to  the  name  and  residence  of  decedent, 


470  INHERITANCE  TAXATION. 

date  of  death,  name  and  address  of  administrator,  executor,  or  trustee,  the 
description  of  any  property  liable  to  said  tax  and  the  county  in  which  it  is 
located  and  name  and  relationship  of  all  beneficiaries  or  heirs.  Any  citizen 
of  the  state  having  knowledge  of  property  liable  to  such  tax,  against  which  no 
proceeding  for  enforcing  collection  thereof  is  pending,  may  report  the  same 
to  the  clerk  and  it  shall  be  the  duty  of  such  officer  to  investigate  the  case,  and 
if  he  has  reason  to  believe  the  information  to  be  true,  he  shall  forthwith  enter 
the  estate  and  report  the  same  substantially  as  above  indicated.  For  reporting 
such  estates  or  property  the  clerk  shall  receive  a  compensation  of  one  dollar 
for  each  one  hundred  dollars  or  fraction  thereof  of  tax  paid,  but  not  to  exceed 
the  sum  of  five  dollars  in  any  one  estate,  the  same  to  be  in  addition  to  th« 
compensation  now  allowed  him  by  law.  Except  when  this  information  has  been 
first  received  from  another  source,  the  treasurer  of  state,  when  he  has  issued  his 
receipt  for  the  tax  in  such  estate,  shall  certify  to  the  auditor  of  state  the 
amount  due  the  clerk  for  such  service,  and  the  auditor  of  state  shall  issue  his 
warrant  on  the  treasurer  of  state  in  favor  of  said  clerk  for  the  sum  as  herein 
provided.  (Laws  1911,  p.  59.) 

§  577.    Duties  of  County  Attorney — Compensation. 

Sec.  33.  It  shall  be  the  duty  of  the  county  attorney  of  each  county,  when 
directed  by  the  treasurer  of  state,  to  perform  such  legal  services  as  shall  be 
necessary  in  the  enforcement  of  said  tax,  but  such  attorney  shall  have  no  au- 
thority to  receipt  for  or  receive  any  of  such  tax.  He  shall  advise  and  assist 
the  clerk  and  appraisers  in  the  discharge  of  their  duties  in  collateral  inheritance 
tax  matters,  and  see  that  the  notices  required  by  law  are  properly  made  and 
returned.  In  each  estate  where  the  county  attorney  has  performed  such  legal 
services,  he  shall  receive  a  compensation  as  follows,  viz. :  on  the  first  one  hun- 
dred dollars  or  fraction  thereof  of  tax  paid,  ten  per  cent;  on  the  excess  of  one 
hundred  dollars  to  five  hundred  dollars  five  per  cent;  on  the  excess  of  five  hun- 
dred dollars  to  one  thousand  dollars  three  per  cent;  on  all  sums  in  excess  of 
one  thousand  dollars  one  per  cent  but  not  to  exceed  one  hundred  and  fifty 
dollars  from  any  one  estate.  Provided,  however,  that  except  in  cases  of  litiga- 
tion requiring  the  filing  of  a  petition  or  answer  in  court,  the  fee  in  any  case 
shall  not  exceed  the  sum  of  fifty  dollars.  When  the  treasurer  of  state  has  is- 
sued his  receipt  for  the  tax  in  an  estate,  in  which  the  county  attorney  has  been 
directed  to  render  legal  services,  and  has  performed  such  services,  the  treasurer 
of  state  shall  certify  the  amount  due  for  such  services  to  the  auditor  of  state, 
who  shall  issue  his  warrant  on  the  treasurer  of  state  in  favor  of  the  said  county 
attorney  for  the  sum  due.  If  the  county  attorney  is  attorney  for  the  executor, 
administrator  or  other  person  interested  in  the  state,  the  treasurer  of  state  may 
employ  another  attorney  to  represent  the  state.  (Laws  1911,  p.  60.) 

§  578.     Settlement  of  Conflicting  Claims  for  Fees. 

Sec.  34.  In  the  event  of  uncertainty  or  of  conflicting  claims  as  to  fees  due 
county  attorneys  or  clerks  under  this  act,  the  treasurer  of  state  is  empowered 
to  determine  the  amount  of  fees,  to  whom  payable,  and  when  the  same  are  due, 
and  as  far  as  possible,  such  determination  shall  be  in  accord  with  fixed  rules 
made  by  the.  treasurer  of  state.  (Laws  1911,  p.  60.) 


IOWA  STATUTE.  471 

§  579.    Enforcement  of  Payment  of  Tax. 

Sec.  35.  On  the  first  day  of  each  regular  term,  the  court  shall  require  the 
clerk  to  present  for  its  inspection  the  inheritance  tax  and  lien  book  hereinbe- 
fore provided  for,  together  with  all  reports  of  administrators,  executors  and 
trustees  which  have  been  filed  pursuant  to  this  act,  since  the  last  preceding 
term.  The  county  attorney  shall  also  attend  and  make  report  to  the  court  con- 
cerning the  progress  of  all  cases  pending  for  the  collection  of  such  taxes,  to- 
gether with  any  other  facts,  which  in  his  judgment  may  aid  the  court  in  enforc- 
ing the  general  observance  of  the  collateral  inheritance  tax  law.  If  from 
information  obtained  from  the  records  or  reports,  or  from  any  other  source,  the 
court  has  reason  to  believe  that  there  is  property  within  its  jurisdiction  liable 
to  the  payment  of  an  inheritance  tax,  against  which  proceedings  for  collection 
are  not  already  pending,  it  shall  enter  an  order  of  record,  directing  the  county 
attorney  to  institute  such  proceedings  forthwith.  Should  any  estate,  or  the 
name  of  any  grantee  or  grantees  be  placed  upon  the  book  at  the  suggestion  of 
the  county  attorney,  the  treasurer  of  state,  or  other  person,  in  which  the  papers 
already  on  file  in  the  clerk's  office  do  not  disclose  that  an  inheritance  tax  is  due 
or  payable,  the  county  attorney  shall  forthwith  give  to  all  parties  in  interest 
such  notice  as  the  court  or  judge  may  prescribe,  requiring  them  to  appear  on 
a  day  to  be  fixed  by  the  said  court  or  judge,  and  show  cause  why  the  property 
should  not  be  appraised  and  subjected  to  said  tax.  At  any  such  hearing  any 
person  may  be  required  to  appear  and  answer  as  to  his  knowledge  of  any  such 
estate  or  property.  If  upon  any  such  hearing  the  court  is  satisfied  that  any 
property  of  the  decedent  or  any  property  devised,  granted  or  donated  by  him, 
is  subject  to  the  tax,  the  same  proceedings  shall  be  had  as  in  other  cases,  so 
far  as  applicable.  (Laws  1911,  p.  60.) 

§  580.    Costs  Taxed  to  Estates. 

Sec.  36.  In  all  cases  where  an  estate  or  interest  therein  so  passes  as  to  be 
liable  to  taxation  under  this  act,  all  costs  of  the  proceedings  had  for  the  assess- 
ment of  such  tax  shall  be  chargeable  to  such  estate  as  other  costs  in  probate 
proceedings  and  to  discharge  the  lien,  all  costs,  as  well  as  the  taxes  must  be 
paid.  In  all  other  cases  the  costs  are  to  be  paid  as  ordered  by  the  court.  When 
a  decision  adverse  to  the  state  has  been  rendered,  with  an  order  that  the  state 
pay  the  costs,  it  shall  be  the  duty  of  the  clerk  of  the  £ourt  in  which  such  action 
was  pending  to  certify  the  amount  of  such  costs  to  the  treasurer  of  state,  who 
shall,  if  said  costs  be  correctly  certified,  and  the  case  has  been  finally  termi- 
nated, and  the  tax  if  any  due  has  been  paid,  present  the  claim  to  the  executive 
council  to  audit,  and  said  claim  being  allowed  by  said  council,  the  auditor  of 
state  is  directed  to  issue  a  warrant  on  the  treasurer  of  state  in  payment  of  such 
costs.  (Laws  1911,  p.  61.) 

§  581.    Delivery  or  Transfer  of  Securities  or  Deposits — Notice. 

Sec.  37.  No  safe  deposit  company,  trust  company,  bank  or  other  institu- 
tion, person  or  persons  holding  securities  or  assets  of  the  decedent  shall  deliver 
or  transfer  the  same  to  the  executor,  administrator  or  legal  representative  of 
said  decedent  unless  the  tax  for  which  such  securities  or  assets  are  liable  under 
this  act  shall  be  first  paid,  or  the  payment  thereof  is  secured  by  bond  as  herein 


472  INHERITANCE  TAXATION. 

provided.  It  shall  he  lawful  for  and  the  duty  of  the  treasurer  of  state  person- 
ally, or  by  any  person  by  him  duly  authorized,  to  examine  such  securities  or 
assets  at  the  time  of  any  proposed  delivery  or  transfer.  Failure  to  serve  ten 
days'  notice  of  such  proposed  transfer  upon  the  treasurer  of  state  or  to  allow 
such  examination  on  the  delivery  of  such  securities  or  assets  to  such  executor, 
administrator  or  legal  representative  shall  render  such  safe  deposit  company, 
trust  company,  bank  or  other  institution,  person  or  persons  liable  for  the  pay- 
ment of  the  tax  upon  such  securities  or  assets  as  provided  in  this  act.  (Laws 
1911,  p.  61.) 

§  582.    Transfers  of  Corporate  Stock — Liability  of  Corporation. 

Sec.  38.  If  a  foreign  executor,  administrator  or  trustee  shall  assign  or  trans- 
fer any  corporate  stock  or  obligations  in  this  state  standing  in  the  name  of  a 
decedent,  or  in  trust  for  a  decedent,  liable  to  such  tax,  the  tax  shall  be  paid 
to  the  treasurer  of  state  on  or  before  the  transfer  thereof;  otherwise  the  corpo- 
ration permitting  its  stock  to  be  so  transferred  shall  be  liable  to  pay  such  tax, 
interest,  and  costs,  and  it  is  the  duty  of  the  treasurer  of  state  to  enforce  the 
payment  thereof.  (Laws  1911,  p.  61.) 

§  583.  Corporations  to  Report  Certain  Stock  Transfers  to  State  Treasurer. 
Sec.  39.  All  Iowa  corporations  organized  for  pecuniary  profit,  shall  on  July 
1st  of  each  year,  by  its  proper  officers  under  oath  make  a  full  and  correct  report 
to  the  treasurer  of  state  of  all  transfers  of  its  stocks  made  during  the  preced- 
ing year  by  any  person  who  appears  on  the  books  of  such  corporation  as  the 
owner  of  such  stock,  when  such  transfer  is  made  to  take  effect  at  or  after  the 
death  of  the  owner  or  transferrer,  and  all  transfers  which  are  made  by  an  ad- 
ministrator, executor,  trustee,  referee,  or  any  person  other  than  the  owner  or 
person  in  whose  name  the  stocks  appeared  of  record  on  the  books  of  such  cor- 
poration, prior  to  the  transfer  thereof.  Such  report  shall  show  the  name  of  the 
owner  of  such  stocks  and  his  place  of  residence,  the  name  of  the  person  at  whose 
request  the  stock  was  transferred,  his  place  of  residence  and  the  authority  by 
virtue  of  which  he  acted  in  making  such  transfer,  the  name  of  the  person  to 
whom  the  transfer  was  made,  and  the  residence  of  such  person;  together  with 
euch  other  information  as  the  officers  reporting  may  have  relating  to  estates 
of  persons  deceased  who  may  have  been  owners  of  stock  in  such  corporation. 
If  it  appears  that  any  such  stock  so  transferred  is  subject  to  tax  under  the  pro- 
visions of  this  act,  and  the  tax  has  not  been  paid,  the  treasurer  of  state  shall 
notify  the  corporation  in  writing  of  its  liability  for  the  payment  thereof,  and 
shall  bring  suit  against  such  corporation  as  in  other  cases  herein  provided  unless 
payment  of  the  tax  is  made  within  sixty  days  from,  the  date  of  such  notice. 
(Laws  1911,  p.  62.) 

§  584.     Foreign  Estates — Deduction  of  Debts. 

Sec.  40.  Whenever  any  property  belonging  to  a  foreign  estate,  which  estate 
in  whole  or  in  part  passes  to  persons  not  exempt  herein  from  such  tax,  the  said 
tax  shall  be  assessed  upon  the  market  value  of  said  property  remaining  after 
the  payment  of  such  debts  and  expenses  as  are  chargeable  to  the  property  under 
the  laws  of  this  state.  In  the  event  that  the  executor,  administrator  or  trustee 


IOWA  STATUTE.  473 

of  such  foreign  estate  files  with  the  clerk  of  the  court  having  ancillary  jurisdic- 
tion, and  with  the  treasurer  of  state,  duly  certified  statements  exhibiting  the 
true  market  value  of  the  entire  estate  of  the  decedent  owner,  and  the  indebted- 
ness fv,r  v,  Iiich  the  said  estate  has  been  adjudged  liable,  which  statements  shall 
be  duly  attested  by  the  judge  of  the  court  having  original  jurisdiction,  the  bene- 
ficiaries of  said  estate  shall  then  be  entitled  to  have  deducted  such  proportion 
of  the  said  indebtedness  of  the  decedent  from  the  value  of  the  property  as  the 
value  of  the  property  within  this  state  bears  to  the  value  of  the  entire  estate. 
(Laws  1911,  p.  62.) 

§  585.     Property  of  Foreign  Estates  not  Specifically  Devised. 

Sec.  41.  Whenever  any  property,  real  or  personal,  within  this  state  belongs 
to  a  foreign  estate  and  said  foreign  estate  passes  in  part  exempt  from  the  tax 
imposed  by  this  act  and  in  part  subject  to  said  tax  and  ther*  is  no  specific 
devise  of  the  property  within  this  state  to  direct  heirs  or  if  it  is  within  the 
authority  or  discretion  of  the  foreign  executor,  administrator  or  trustee  admin- 
istering the  estate  to  dispose  of  the  property  not  specifically  devised  to  direct 
heirs  or  devisees  in  the  payment  of  debts  owing  by  the  decedent  at  the  time 
of  his  death,  or  in  satisfaction  of  legacies,  devises,  or  trusts  given  to  direct 
or  collateral  legatees  or  devisees  or  in  payment  of  the  distributive  shares  of 
any  direct  and  collateral  heirs,  then  the  property  within  the  jurisdiction  of 
this  state,  belonging  to  such  foreign  estate,  shall  be  subject  to  the  tax  im- 
posed by  this  act,  and  the  tax  due  thereon  shall  be  assessed  as  provided  in 
the  next  preceding  section  of  this  act  relating  to  the  deduction  of  the  propor- 
tionate share  of  indebtedness.  Provided,  however,  that  if  the  value  of  the 
property  so  situated  exceeds  the  total  amount  of  the  estate  passing  to 
other  persons  than  those  exempt  hereby  from  the  tax  imposed  by  this  act 
such  excess  shall  not  be  subject  to  said  tax.  (Laws  1911,  p.  62.) 

§  586.    Approval  of  Compromise  Settlement. 

Sec.  42.  Whenever  an  estate  charged  or  sought  to  be  charged  with  the 
collateral  inheritance  tax  is  of  such  a  nature,  or  is  so  disposed,  that  the 
liability  of  the  estate  is  doubtful,  or  the  value  thereof  cannot  with  reason- 
able certainty  be  ascertained  under  the  provisions  of  law,  the  treasurer 
of  state  may,  with  the  written  approval  of  the  attorney  general,  which 
approval  shall  set  forth  the  reasons  therefor,  compromise  with  the  bene- 
ficiaries or  representatives  of  such  estates,  and  compound  the  fax  thereon; 
but  said  settlement  must  be  approved  by  the  district  court  or  judge  of 
the  proper  court,  and  after  such  approval  the  payment  of  the  amount  of 
the  taxes  so  agreed  upon  shall  discharge  the  lien  against  the  property  of 
the  estate.  (Laws  1911,  p.  63.) 

§  587.    Unknown  Heirs. 

Sec.  43.  Whenever  the  heirs  or  persona  entitled  to  any  estate,  or  any  in- 
terest therein,  are  unknown  or  their  place  of  residence  cannot  with  reason- 
able certainty,  be  ascertained,  a  tax  of  five  per  cent  shall  be  paid  to  the 
treasurer  of  state  upon  all  such  estates  or  interests,  subject  to  refund  as 
provided  herein  in  other  cases;  provided,  however,  that  if  it  be  afterward 


474  INHERITANCE  TAXATION. 

determined  that  any  estate  or  interest  passes  to  aliens,  there  shall  be  paid 
within  sixty  days  after  such  determination  and  before  delivery  of  such  es- 
tate or  property,  an  amount  equal  to  the  difference  between  five  per  cen- 
tum, the  amount  paid,  and  the  amount  which  such  person  should  pay 
under  the  provisions  of  this  act.  (Laws  1911,  p.  63.) 

§  588.     Refund  of  Tax. 

Sec.  44.  When  within  five  years  after  the  payment  of  the  tax,  a  court  of 
competent  jurisdiction  may  determine  that  property  upon  which  a  collat- 
eral inheritance  tax  has  been  paid  is  not  subject  to  or  liable  for  the  pay- 
ment of  such  tax,  or  that  the  amount  of  tax  paid  was  excessive,  so  much  of 
such  tax  as  has  been  overpaid  to  the  treasurer  of  state  shall  be  returned  or 
refunded  to  the  executor  or  administrator  of  such  estate,  or  to  those  entitled 
thereto,  when  a  certified  copy  of  the  record  of  such  court  showing  the  fact 
of  nonliability  of  such  property  to  the  payment  of  such  tax  has  been  filed 
with  the  executive  council  of  the  state,  the  executive  council  shall  if  the 
case  has  been  finally  determined  issue  an  order  to  the  auditor  of  state  direct- 
ing him  to  issue  a  warrant  upon  the  treasurer  of  state  to  refund  such  tax. 
Such  order  of  court  shall  not  be  given  until  fifteen  days'  notice  of  the  ap- 
plication therefor  shall  have  been  given  to  the  treasurer  of  state  of  the  time 
and  place  of  the  hearing  of  such  application,  which  notice  shall  be  served 
in  the  same  manner  as  provided  for  original  notices.  (Laws  1911,  p.  63.) 

§  589.    Contingent  Estates,  Devises  or  Legacies. 

Sec.  45.  Estates  in  expectancy  which  are  contingent  or  defeasible  and  in 
which  proceedings  for  the  determination  of  the  tax  have  not  been  taken  or 
where  the  taxation  thereof  has  been  held  in  abeyance,  shall  be  appraised  at  their 
full,  undiminished  value  when  the  persons  entitled  thereto  shall  come  into  the 
beneficial  enjoyment  or  possession  thereof,  without  diminution  for  or  on  ac- 
count of  any  valuation  theretofore  made  of  the  particular  estates  for  pur- 
poses of  taxation,  upon  which  said  estates  in  expectancy  may  have  been 
limited.  When  an  estate,  devise,  or  legacy  can  be  devested  by  the  act  or 
omission  of  the  legatee  or  devisee,  it  shall  be  taxed  as  if  there  were  no 
possibility  of  such  devesting.  When  a  devise,  bequest  or  transfer  is  one  in 
part  contingent,  and  in  part  vested  so  that  the  beneficiary  will  come  into 
possession  and  enjoyment  of  a  portion  of  his  inheritance  on  or  before  the 
happening  of  the  event  upon  which  the  possible  defeating  contingency  is 
based,  a  tax  shall  be  imposed  and  collected  upon  such  bequest  or  transfer  as 
upon  a  vested  interest,  at  the  highest  rate  possible  under  the  terms  of  this 
act  if  no  such  contingency  existed;  provided,  that  in  the  event  such  contin- 
gency reduces  the  value  of  the  estate  or  interest  so  taxed,  and  the  amount 
of  tax  so  paid  is  in  excess  of  the  tax  for  which  such  bequest  or  transfer  is 
liable  upon  the  removal  of  such  contingency,  such  excess  shall  be  refunded 
as  is  provided  in  section  forty-four  of  this  act  in  other  cases.  (Laws  1911, 
p.  63.) 

§  590.    Definitions  of  Terms. 

Sec.  46.  In  the  construction  of  this  act,  the  words  "collateral  heirs" 
shall  be  held  to  mean  all  persons  who  are  not  specifically  exempt  from  the 


IOWA  STATUTE.  475 

tax  imposed  by  the  provisions  hereof.  The  word  "person"  shall  include 
a  plural  as  well  as  singular,  and  artificial  as  well  as  natural  persons.  This 
act  shall  not  be  construed  to  confer  upon  a  county  attorney  authority  to 
represent  the  state  in  any  case,  and  he  shall  represent  the  treasurer  of 
state  only  when  especially  authorized  by  him  to  do  so.  This  act  shall 
apply  to  all  estates  subject  to  taxation  under  the  law  repealed  by  this 
act  if  the  tax  for  which  such  estates  are  liable  shall  not  have  been  paid 
prior  to  the  taking  effect  of  this  act.  (Laws  1911,  p.  64.) 

§  591.    Records  to  be  Kept  by  State  Treasurer. 

Sec.  47.  The  treasurer  of  state  shall  record  in  a  book  kept  in  his  office 
for  that  purpose,  all  estates  reported  to  him  as  liable  for  a  tax  under 
the  provisions  of  this  act,  showing, — 

(1)  The  name  of  the  decedent. 

(2)  The  place  of  his  residence  or  county  from  which  such  estate  was 
reported. 

(3)  The  date  of  his  death. 

(4)  The  name  of  the  administrator,  executor  or  trustee. 

(5)  The  appraised  value  of  the  property,  or  the  value  of  any  taxable 
pecuniary  legacy. 

(6)  The  amount  of  indebtedness   that   was   deducted  before  estimating 
the  tax. 

(7)  The  amount  of  tax  collected. 

(8)  The  amount  of  fees  paid  for  reporting  and  collecting  such  tax. 

(9)  The  amount  of  tax,  if  any,  refunded. 

He  shall  also  keep  a  separate  record  of  any  deferred  estate  upon  which 
the  tax  due  is  not  paid  within  eighteen  (18)  months  from  the  death 
of  the  decedent,  showing  substantially  the  same  facts  as  is  required  in 
other  cases,  and  also  showing, — 

a.  The  date  and  amount  of  all  bonds  given  to  secure  the  payment  of  the 
tax  with  a  list  of  the  sureties  thereon. 

b.  The  name  of  the  person  beneficially  entitled  to  such  estate  or  interest, 
with  place  of  residence. 

c.  A  description  of  the  property  or  a  statement  of  conditions  upon  which 
such  deferred  estate  is  based  or  limited.     (Laws  1911,  p.  64.) 

§  592.    Repeal  of  Conflicting  Statutes. 

Sec.  48.  Chapter  four,  of  title  seven,  of  the  supplement  to  the  code, 
1907,  and  chapter  ninety-two  of  the  acts  of  the  thirty-third  general  assem- 
bly, and  all  other  acts  or  parts  of  acts  in  conflict  herewith  are  hereby 
repealed.  Approved  May  2,  A.  D.  1911. 


476  INHERITANCE  TAXATION. 


CHAPTER  XXXI. 
•  KANSAS  STATUTE. 

(General  Statutes  of  1909,  pp.  1997-S004.) 

§  593.  Transfers  Subject  to  Tax — Rates — Persons  Liable — Exemptions. 

§  594.  Property  Out  of  State  or  Nonresident  Within  State. 

§  595.  Payment  of  Tax — Interest — Lien  of  Tax. 

§  596.  Deposit  for  Payment  of  Tax  in  Case  of  Contingent  Gift. 

§  597.  Assessment  of  Tax — Value  of  Property. 

§  598.  Payment  of  Tax  on  Future  Interests. 

§  599.  Bequests  to  Executors  in  Lieu  of  Compensation. 

§  600.  Collection  of  Tax  by  Executor. 

§  601.  Legacy  Charged  upon  Eeal  Estate. 

§  602.  Testamentary  Provision   for  Payment, 

§  603.  Sale  of  Property  to  Pay  Tax. 

§  604.  Inventory  and  Appraisement — Failure  to  File. 

§  605.  Recording  Inventory  and  Appraisement — Copies  of  Papers. 

§  606.  Tax  on  Stock  Transferred  by  Foreign  Executor. 

§  607.  Tax  on  Assets  Delivered  to  Nonresident. 

§  608.  Refunding  Excess  Payments. 

§  609.  Determination  of  Value  of  Property. 

§  610.  Determination  of  Tax  by  Commission. 

§  611.  Jurisdiction  of  Probate  Court. 

§  612.  Administration  at  Instance  of  Tax  Commission. 

§  613.  Account  of  Executor  not  Settled  Until  Tax  Paid. 

§  614.  Proceedings  for  Recovery  of  Tax. 

§  615.  Retrospective  Operation  of  Statute. 

§  616.  Report  of  County  Treasurer. 

§  617.  Commissions  of  County  Treasurer. 

§  618.  Taxes  to  be  Paid  into  State  Treasury. 

§  619.  Definitions  of  Terms. 

§  593.     Transfers  Subject  to  Tax — Rates — Persons  Liable — Exemptions. 

Sec.  52.  All  property,  corporeal  or  incorporeal,  and  any  interest  therein, 
within  the  jurisdiction  of  the  state,  whether  belonging  to  the  inhabitants  of 
the  state  or  not,  which  shall  pass  by  will  or  by  the  laws  regulating  intestate 
succession,  or  by  deed,  grant,  or  gift  made  in  contemplation  of  death,  or  made 
or  intended  to  take  effect  in  possession  or  enjoyment  after  the  death  of  the 
grantor,  to  any  person,  absolutely  or  in  trust — except  in  case  of  a  bona  fide 
purchase  for  full  consideration  in  money  or  money's  worth;  and  except  prop- 
erty to  or  for  the  use  of  literary,  educational,  scientific,  religious,  benevolent 
and  charitable  societies  or  institutions:  Provided,  such  use  entitles  the  prop- 
erty so  passing  to  be  exempt  from  taxation;  and  except  property  to  or  for 
the  use  of  the  state,  a  county  or  a  municipality  for  public  purposes ;  and  except 
property  to  or  for  the  use  of  a  class  herein  designated  as  class  A,  being  the 
husband,  wife,  lineal  ancestor,  lineal  descendant,  adopted  child,  the  lineal 


KANSAS  STATUTE.  477 

descendant  of  any  adopted  child,  the  wife  or  widow  of  a  son  or  the  husband  of 
a  daughter  of  a  decedent;  and  except  property  to  or  for  the  use  of  a  class 
herein  designated  as  class  B,  being  the  brother,  sister,  nephew  or  niece  of  a 
decedent,  not  to  exceed  twenty-five  thousand  dollars,  shall  be  subject  to  a 
tax  of  five  per  cent  of  its  value;  and  all  such  property  which  shall  so  pass 
in  excess  of  twenty-five  thousand  dollars  and  not  to  exceed  fifty  thousand 
dollars  shall  be  subject  to  a  tax  of  seven  and  one-half  per  cent  of  its  value; 
and  all  such  property  which  shall  so  pass  in  excess  of  fifty  thousand  dollars 
and  not  to  exceed  one  hundred  thousand  dollars  shall  be  subject  to  a  tax  of 
ten  per  cent  of  its  value;  and  all  such  property  which  shall  so  pass  in  excess 
of  one  hundred  thousand  dollars  and  not  to  exceed  five  hundred  thousand  dol- 
lars shall  be  subject  to  a  tax  of  twelve  and  one-half  per  cent  of  its  value;  and 
all  such  property  which  shall  so  pass  in  excess  of  five  hundred  thousand  dollars 
shall  be  subject  to  a  tax  of  fifteen  per  cent  of  its  value;  and  all  such  property 
which  shall  so  pass  to  or  for  the  use  of  a  member  of  class  A  not  to  exceed 
twenty-five  thousand  dollars  shall  be  subject  to  a  tax  of  one  per  cent  of  its 
value ;  and  all  such  property  which  shall  so  pass  to  or  for  the  use  of  &  member 
of  class  A  in  excess  of  twenty-five  thousand  dollars  and  not  to  exceed  fifty 
thousand  dollars  shall  be  subject  to  a  tax  of  two  per  cent  of  its  value;  and 
all  such  property  which  shall  so  pass  to  or  for  the  use  of  a  member  of  class  A 
in  excess  of  fifty  thousand  dollars  and  not  to  exceed  one  hundred  thousand 
dollars  shall  be  subject  to  a  tax  of  three  per  cent  of  its  value;  and  all  such 
property  which  shall  so  pass  to  or  for  the  use  of  a  member  of  class  A  in 
excess  of  one  hundred  thousand  dollars  and  not  to  exceed  five  hundred  thou- 
sand dollars  shall  be  subject  to  a  tax  of  four  per  cent  of  its  value;  and  all 
such  property  which  shall  so  pass  to  or  for  a  member  of  class  A  in  excess  of 
five  hundred  thousand  dollars  shall  be  subject  to  a  tax  of  five  per  cent  of  its 
value ;  and  all  such  property  which  shall  so  pass  to  or  for  the  use  of  a  member 
of  class  B  not  to  exceed  twenty-five  thousand  dollars  shall  be  subject  to  a  tax 
of  three  per  cent  of  its  value;  and  all  such  property  which  shall  so  pass  to 
or  for  the  use  of  a  member  of  class  B  in  excess  of  twenty-five  thousand  dollars 
and  not  to  exceed  fifty  thousand  dollars  shall  be  subject  to  a  tax  of  five  per 
cent  of  its  value;  and  all  such  property  which  shall  so  pass  to  or  for  the  use 
of  class  B  in  excess  of  fifty  thousand  dollars  and  not  to  exceed  one  hundred 
thousand  dollars  shall  be  subject  to  a  tax  of  seven  and  one-half  per  cent  of  its 
value;  and  all  such  property  which  shall  so  pass  to  or  for  the  use  of  a  member 
of  class  B  in  excess  of  one  hundred  thousand  dollars  and  not  to  exceed  five 
hundred  thousand  dollars  shall  be  subject  to  a  tax  of  ten  per  cent  of  its  value; 
and  all  such  property  which  shall  so  pass  to  or  for  a  member  of  class  B  in 
excess  of  five  hundred  thousand  dollars  shall  be  subject  to  a  tax  of  twelve 
and  one-half  per  cent  of  its  value;  and  all  taxes  hereinafter  provided  for 
shall  be  for  the  use  of  the  state;  and  administrators,  executors  and  trustees, 
and  any  grantees  under  any  such  conveyance  made  during  the  grantor's  life, 
shall  be  liable  for  such  taxes,  with  interest  at  the  legal  rate,  until  the  same 
shall  have  been  paid:  Provided,  that  no  bequest,  devise  or  distributive 
share  of  an  estate  which  shall  so  pass  to  or  for  the  use  of  a  husband,  wife, 
father,  mother,  child  or  adopted  child  of  the  deceased,  shall  be  subject  to  the 
provisions  of  this  act,  unless  its  value  exceeds  five  thousand  dollars:  And  pro- 


478  INHERITANCE  TAXATION. 

vided  further,  that  no  bequest,  devise  or  distributive  share  of  an  estate  which 
shall  BO  pass  to  or  for  the  use  of  a  brother,  sister,  nephew  or  niece  of  the 
deceased  shall  be  subject  to  the  provisions  of  this  act  unless  its  value  exceeds 
one  thousand  dollars.  Property  shall  be  deemed  to  have  been  transferred  by 
grant  or  gift  in  contemplation  of  death,  under  this  act,  when  such  grant  or 
gift  shall  have  been  executed  within  one  year  prior  to  the  death  of  the  grantor 
or  donor.  (Gen.  Stats.  (1909),  p.  1997.) 

§  594.    Property  Out  of  State  or  Nonresident  Within  State. 

Sec.  53.  Property  of  a  resident  of  a  state,  which  is  not  therein  at  the  time 
of  his  death,  shall  not  be  taxable  under  the  provisions  of  this  act  if  legally 
subject  in  another  state  or  country  to  a  tax  of  like  character  and  amount  to 
that  hereby  imposed:  Provided,  such  tax  be  actually  paid,  guaranteed  or 
secured  in  such  other  state  or  country.  If,  however,  such  property  be  legally 
subject  in  another  state  or  country  to  a  tax  of  like  character  but  of  less  amount 
than  that  hereby  imposed,  and  such  tax  be  actually  paid,  guaranteed  or  secured 
as  aforesaid,  such  property  shall  be  taxable  under  this  act  to  the  extent  of  the 
excess  for  which  such  property  would  otherwise  be  liable  hereunder  over  the 
tax  thus  actually  paid,  guaranteed  or  secured.  Property  of  the  estate  of  a 
nonresident  decedent,  which  is  situated  in  the  state  at  the  time  of  his  death, 
if  subject  to  a  tax  of  like  character  with  that  imposed  by  this  act  by  the  law 
of  the  state  or  country  where  decedent  had  his  residence,  shall  be  subject  only 
to  such  portion  of  the  tax  hereby  imposed  as  may  be  in  excess  of  such  tax 
imposed  by  the  laws  of  such  other  state  or  country:  Provided,  that  a  like 
exemption  is  made  by  the  laws  of  such  other  state  or  country  in  favor  of 
estates  of  citizens  of  this  state,  but  in  such  cases  no  exemption  shall  be  allowed 
until  the  tax  provided  for  by  the  law  of  such  other  state  or  country  shall  be 
actually  paid,  guaranteed  or  secured  in  accordance  with  law.  (Gen.  Stats. 
(1909),  p.  1999.) 

§  595.    Payment  of  Tax — Interest — Lien  of  Tax. 

Sec.  54.  Except  as  hereinafter  provided,  taxes  imposed  by  the  provisions  of 
this  act  shall  be  payable  to  the  county  treasurer  of  the  county  in  which  is  situ- 
ated the  probate  court  having  jurisdiction  as  in  this  act  provided,  by  the  execu- 
tors, administrators  or  trustees,  at  the  expiration  of  one  year  after  the  date  of 
their  giving  bond;  but  if  legacies  or  distributive  shares  are  paid  within  the  one 
year,  the  taxes  thereon  shall  be  payable  at  the  same  time.  In  cases  where 
property  is  transferred  by  deed,  grant  or  gift  made  in  contemplation  of  death, 
the  tax  thereon  shall  be  due  and  payable  at  the  time  of  such  transfer.  In  all 
cases  where  there  shall  be  a  grant,  devise,  descent  or  bequest,  to  take  effect  in 
possession  or  come  into  actual  enjoyment  after  the  expiration  of  one  or  more 
life  estates  or  after  a  term  of  years,  the  taxes  thereon  shall  be  payable  by  the 
executors,  administrators  or  trustees  in  office  when  such  right  of  possession 
accrues,  or,  if  there  is  no  such  executor,  administrator  or  trustee,  by  the  person 
so  entitled  thereto,  at  the  date  when  the  right  of  possession  accrues  to  the 
person  or  persons  so  entitled.  If  the  taxes  contemplated  by  this  act  are  not 
paid  when  due,  interest  at  the  legal  rate  shall  be  charged  and  collected  from 
the  time  the  same  becomes  payable.  Property  of  which  a  decedent  died  seised 


KANSAS  STATUTE.  479 

or  possessed,  subject  to  taxes  as  aforesaid,  in  whatever  form  or  investment  it 
may  happen  to  be,  and  all  property  acquired  in  substitution  therefor,  shall 
be  charged  with  a  lien  for  all  taxes  and  interest  thereon  which  are  or  may 
become  due  on  such  property;  but  said  lien  shall  not  affect  any  personal  prop- 
erty after  the  same  has  been  sold  or  disposed  of  for  value  by  the  executors, 
administrators  or  trustees.  The  lien  charged  by  this  act  upon  any  real  estate 
or  separate  parcel  thereof  may  be  discharged  by  the  payment  of  all  taxes  due 
and  to  become  due  which  are  secured  by  such  lien  on  real  estate,  or  such  lien 
for  taxes  may  be  satisfied,  in  relation  to  any  real  estate  or  separate  parcel 
thereof,  on  condition  that  the  payment  of  the  tax  to  the  state  is  first  secured 
by  bond  or  deposit  or  that  other  real  estate  is  substituted  in  the  place  of  that 
which  is  sought  to  be  released:  provided,  that  the  probate  court  having  juris- 
diction shall  first  approve  the  bond  or  deposit  tendered,  or  in  advance  thereof 
shall  approve  of  the  substitution  of  other  real  estate  as  security  for  the  taxes, 
in  lieu  of  that  which  is  to  be  released.  (Gen.  Stats.  (1909),  p.  1999.) 

§  596.    Deposit  for  Payment  of  Tax  in  Case  of  Contingent  Gift. 

Sec.  55.  In  every  case  where  there  shall  be  a  bequest  or  grant  of  personal 
estate  made  or  intended  to  take  effect  in  possession  or  enjoyment  after  the 
death  of  the  grantor,  to  take  effect  in  possession  or  come  into  actual  enjoyment 
after  the  expiration  of  one  or  more  life  estates  or  a  term  of  years,  whether 
conditioned  upon  the  happening  of  a  contingency,  or  dependent  upon  the  exer- 
cise of  a  discretion,  or  subject  to  a  power  of  appointment  or  otherwise,  the 
executor  or  administrator  or  grantor  may  deposit  with  the  county  treasurer  a 
sum  of  money  sufficient  in  the  opinion  of  the  said  county  treasurer  to  pay  all 
taxes  which  may  become  due  upon  such  bequest  or  grant,  and  the  person  or 
persons  having  the  right  to  the  use  or  income  of  such  personal  estate  shall  be 
entitled  to  receive  from  the  said  county  treasurer  interest  at  the  rate  of  four 
per  cent  per  annum  upon  such  deposit)  and  when  said  tax  shall  become  due 
the  said  county  treasurer  shall  repay  to  the  persons  entitled  thereto  the  differ- 
ence between  the  tax  certified  and  the  amount  deposited;  or  any  executor, 
administrator,  trustee  OP  grantee,  or  any  person  interested  in  such  bequest  or 
grant  may  give  bond  to  the  probate  court  having  jurisdiction  of  the  estate  of 
the  decedent,  in  such  amount  and  with  such  sureties  as  said  court  may  approve, 
with  the  condition  that  the  obligor  shall  notify  the  tax  commission  when  said 
tax  becomes  due  and  shall  then  pay  the  same  to  the  county  treasurer.  (Gen. 
Stats.  (1909),  p.  2000.) 

§  597.    Assessment  of  Tax — Value  of  Property. 

Sec.  56.  Except  as  hereinafter  provided,  said  tax  shall  be  assessed  upon 
the  actual  value  of  the  property  at  the  time  of  the  death  of  the  decedent.  In 
every  case  where  property  is  transferred  by  deed,  grant  or  gift  made  in  con- 
templation of  death,  the  tax  thereon  shall  be  a  lien  on  the  interest  of  the 
beneficiary  therein  from  the  date  of  transfer  and  shall  be  assessed  when  the 
beneficiary  becomes  entitled  to  the  possession  and  enjoyment  thereof.  In  every 
case  where  there  shall  be  a  devise,  descent,  bequest  or  grant  to  take  effect  in 
possession  or  enjoyment  after  the  expiration  of  one  or  more  life  estates  or  a 
term  of  years,  the  tax  shall  be  assessed  on  the  actual  value  of  the  property  or 


480  INHERITANCE  TAXATION. 

the  interest  of  the  beneficiary  therein  at  the  time  when  he  becomes  entitled  to 
the  same  in  possession  or  enjoyment.  The  value  of  an  annuity  or  a  life  inter- 
est in  any  such  property,  or  any  interest  therein  less  than  an  absolute  interest, 
shall  be  determined  by  the  "American  Experience  Tables"  at  four  per  cent  com- 
pound interest.  (Gen.  Stats.  (1909),  p.  2000.) 

§  598.     Payment  of  Tax  on  Future  Interests. 

Sec.  57.  Any  person  or  persons  entitled  to  a  future  interest  or  to  future 
interests  in  any  property  may  pay  the  tax  on  account  of  the  same  at  any  time 
before  such  tax  would  be  due  in  accordance  with  the  provisions  hereinbefore 
contained,  and  in  such  cases  the  tax  shall  be  assessed  upon  the  actual  value 
of  the  interest  at  the  time  of  the  payment  of  the  tax,  and  such  value  shall 
be  determined  by  the  tax  commission  as  hereinafter  provided.  In  every  case 
in  which  it  is  impossible  to  compute  the  present  value  of  the  future  interest 
the  tax  commission  may,  with  the  approval  of  the  attorney  general,  effect  such 
settlement  of  the  tax  as  it  shall  deem  to  be  for  the  best  interests  of  the  state, 
and  payment  of  the  sum  so  agreed  upon  shall  be  a  full  satisfaction  of  such 
tax.  (Gen.  Stats.  (1909),  p.  2000.) 

§  599.     Bequests  to  Executors  in  Lieu  of  Compensation. 

Sec.  58.  If  a  testator  gives,  bequeaths  or  devises  to  his  executors  or  trustees 
any  property  otherwise  liable  to  said  tax,  in  lieu  of  their  compensation,  the 
value  thereof  in  excess  of  reasonable  compensation,  as  determined  by  the  pro- 
bate court  upon  the  application  of  any  interested  party  or  of  the  tax  com- 
mission, shall  nevertheless  be  subject  to  the  provisions  of  this  act.  (Gen. 
Stats.  (1909),  p.  2001.) 

§  600.    Collection  of  Tax  by  Executor. 

Sec.  59.  An  executor,  administrator  or  trustee  holding  property  subject  to 
said  tax  shall  deduct  the  tax  therefrom  or  collect  it  from  the  legatee  or  person 
entitled  to  said  property;  and  he  shall  not  deliver  property  or  a  specific  legacy 
subject  to  said  tax  until  he  has  collected  the  tax  thereon.  An  executor  or 
administrator  shall  collect  taxes  due  upon  land  which  is  subject  to  tax  under 
the  provisions  hereof  from  the  heirs  or  devisees  entitled  thereto,  and  he  may 
be  authorized  to  sell  said  land  according  to  the  provisions  of  section  11  if  they 
refuse  or  neglect  to  pay  said  tax,  (Gen.  Stats.  (1909),  p.  2001.) 

§  601.    Legacy  Charged  upon  Real  Estate. 

See.  60.  If  a  legacy  subject  to  said  tax  is  charged  upon  or  payable  out  ot 
real  estate,  the  heir  or  devisee,  before  paying  it,  shall  deduct  said  tax  there- 
from and  pay  it  to  the  executor,  administrator  or  trustee,  and  the  tax  shall 
remain  a  lien  upon  said  real  estate  until  it  is  paid.  Payment  thereof  may  be 
enforced  by  the  executor,  administrator  or  trustee  in  the  same  manner  as  the 
payment  of  the  legacy  itself  could  be  enforced.  (Gen.  Stats.  (1909),  p.  2001.) 

§  602.     Testamentary  Provision  for  Payment. 

Sec.  61.  When  provision  is  made  by  any  will  or  other  instrument  for  pay- 
ment of  the  legacy  or  succession  tax  upon  any  gift  thereby  made  out  of  any 


KANSAS  STATUTE.  481 

property  other  than  that  so  given,  no  tax  shall  be  chargeable  upon  any  money 
to  be  applied  in  payment  of  such  tax.     (Gen.  Stats.  (1909),  p.  2001.) 

§  603.     Sale  of  Property  to  Pay  Tax. 

Sec.  62.  The  probate  court  of  the  proper  county  may  authorize  executors, 
administrators  and  trustees  to  sell  the  real  estate  of  a  decedent  for  the  pay- 
ment of  such  tax  in  the  same  manner  as  it  may  authorize  them  to  sell  real 
estate  for  the  payment  of  debts.  (Gen.  Stats.  (1909),  p.  2001.), 

% 

§  604.     Inventory  and  Appraisement — Failure  to  File. 

Sec.  63.  An  inventory  and  appraisal  under  oath  of  every  estate  shall  be 
filed  in  the  probate  court  by  the  executor,  administrator  or  trustee  within 
three  months  after  his  appointment.  If  he  neglects  or  refuses  to  file  such 
inventory  and  appraisal  he  shall  be  liable  to  a  penalty  of  not  more  than  five 
thousand  dollars,  which  shall  be  recovered  in  the  proper  district  court  by  the 
attorney  general  or  county  attorney  of  the  proper  county  at  the  instance  of 
the  tax  commission,  in  the  name  of  the  state,  for  the  use  of  the  state;  and 
the  probate  judge  shall  notify  the  tax  commission  within  thirty  days  after 
the  expiration  of  said  three  months  of  Nthe  failure  of  any  executor,  adminis- 
trator or  trustee  to  file  an  inventory  and  appraisal  in  his  office.  (Gen.  Stats. 
(1909),  p.  2001.) 

§  605.     Recording  Inventory  and  Appraisement — Copies  of  Papers. 

Sec.  64.  The  probate  judge  shall  record  the  inventory  and  appraisal  of  every 
estate  which  is  filed  in  his  office,  and  he  shall,  within  thirty  days  after  the 
same  has  been  filed,  send  by  mail  to  the  tax  commission  such  inventory  and 
appraisal  or  a  copy  thereof.  The  probate  judge  shall  also,  within  the  same 
period,  send  by  mail  to  the  tax  commission  a  copy  of  the  will  of  the  decedent, 
if  such  has  been  allowed  by  the  probate  court.  The  probate  judge  shall  also 
furnish  such  copies  of  papers  in  his  office  as  the  tax  commission  shall  require, 
and  shall  furnish  information  as  to  the  records  and  files  in  his  office  in  such 
form  as  the  tax  commission  may  require.  The  tax  commission  shall  excuse  the 
probate  court  from  filing  inventories  or  copies  of  inventories  and  of  wills  of 
estates  no  part  of  which  appears  to  be  subject  to  a  tax  under  the  provisions 
of  this  chapter.  (Gen.  Stats.  (1909),  p.  2001.) 

§  606.     Tax  on  Stock  Transferred  by  Foreign  Executor. 

Sec.  65.  If  a  foreign  executor,  administrator  or  trustee  assigns  or  transfers 
any  stock  in  any  national  bank  located  in  this  state  or  in  any  corporation 
organized  under  the  laws  of  this  state  owned  by  a  deceased  nonresident  at  the 
date  of  his  death  and  liable  to  a  tax  under  the  provisions  of  this  act,  the  tax 
shall  be  paid  to  the  county  treasurer  of  the  proper  county  at  the  time  of  such 
assignment  or  transfer;  and  if  it  is  not  paid  when  due,  such  executor,  admin- 
istrator or  trustee  shall  be  personally  liable  therefor  until  it  is  paid.  A  bank 
located  in  this  state  or  a  corporation  organized  under  the  laws  of  this  state 
which  shall  record  a  transfer  of  any  share  of  its  stock  made  by  a  foreign 
executor,  administrator  or  trustee,  or  issue  a  new  certificate  for  a  share  of 
its  stock  at  the  instance  of  a  foreign  executor,  administrator  or  trustee,  before 
81 


482  INHERITANCE  TAXATION. 

all  taxes  imposed  thereon  by  the  provisions  of  this  act  have  been  paid,  shall  be 
liable  for  such  tax  in  an  action  of  contract  brought  by  the  county  attorney 
of  the  proper  county  or  the  attorney  general  in  the  name  of  the  state  and  at 
the  instance  of  either  the  probate  court  or  the  tax  commission.  (Gen.  Stats. 
(1909),  p.  2001.) 
i 

§  607.    Tax  on  Assets  Delivered  to  Nonresident. 

Sec.  66.  Securities  or  assets  belonging  to  the  estate  of  a  deceased  nonresi- 
dent shall  not  be  delivered  'or  transferred  to  a  foreign  executor,  administrator 
or  legal  representative  of  said  decedent  without  serving  notice  upon  the  tax 
commission  of  the  time  and  place  of  such  intended  delivery  or  transfer  seven 
days  at  least  before  the  time  of  such  delivery  or  transfer.  The  tax  commis- 
sion, by  any  member  or  by  representative,  may  examine  such  securities  or 
assets  prior  to  the  time  of  such  delivery  or  transfer.  Failure  to  serve  such 
notice  or  to  allow  such  examination  shall  render  the  person  or  corporation 
making  the  delivery  or  transfer  liable  to  the  payment  of  the  tax  due  upon  said 
securities  or  assets,  in  an  action  brought  by  the  county  attorney  of  the  proper 
county  or  the  attorney  general  in  the  name  of  the  state.  (Gen.  Stats.  (1909), 
p.  2002.) 

§  608.    Refunding  Excess  Payments. 

Sec.  67.  If  a  person  who  has  paid  such  tax  afterward  refunds  a  portion 
of  the  property  on  which  it  was  paid,  or  if  it  is  judicially  determined  that 
the  whole  or  any  part  of  such  tax  ought  not  to  have  been  paid,  such  tax,  or  the 
due  proportion  thereof,  shall  be  repaid  to  him  by  the  executor,  administrator 
or  trustee.  (Gen.  Stats.  (1909),  p.  2002.) 

§  609.    Determination  of  Value  of  Property. 

Sec.  68.  The  value  of  the  property  upon  which  the  tax  is  computed  shall 
be  determined  by  the  tax  commission  and  notified  by  it  to  the  person  or  persons 
by  whom  the  tax  is  payable  and  to  the  probate  court  and  county  treasurer 
of  the  proper  county,  and  such  determination  shall  be  final  unless  the  value  so 
determined  shall  be  reduced  by  proceedings  as  herein  provided.  At  any  time 
within  three  months  after  such  determination  the  probate  court  shall,  upon 
the  application  of  any  party  interested  in  the  succession,  or  on  application  of  thq 
executor,  administrator  or  trustee,  appoint  three  disinterested  appraisers,  who, 
first  being  sworn,  shall  appraise  such  property  at  its  actual  value  in  money 
as  of  the  day  of  the  death  of  the  decedent,  and  shall  make  return  thereof  to 
said  court.  Such  return,  when  accepted  by  said  court,  shall  be  final;  provided, 
that  any  party  aggrieved  by  such  appraisal  shall  have  an  appeal  upon  matters 
of  law.  One-half  of  the  fees  of  said  appraisers,  as  determined  by  the  judge 
of  said  court,  shall  be  paid  by  the  county  treasurer,  and  one-half  of  said  fees 
shall  be  paid  by  the  other  party  or  parties  to  said  proceedings.  (Gen.  Stats. 
(1909),  p.  2002.) 

§  610.    Determination  of  Tax  by  Commission. 

Sets.  69.  The  tax  commission  shall  determine  the  amount  of  tax  due  and 
payable  upon  any  estate,  or  upon  any  part  thereof,  and  shall  certify  the 


KANSAS  STATUTE.  483 

amount  so  due  and  payable  to  the  probate  court  and  to  the  county  treasurer 
and  to  the  person  or  persons  by  whom  the  tax  is  payable;  but  in  the  deter- 
mination of  the  amount  of  any  tax  said  tax  commission  shall  not  be  required 
to  consider  any  payments  on  account  of  debts  or  expenses  of  administration 
which  have  not  been  allowed  by  the  probate  court  having  jurisdiction  of  said 
estate.  Payment  of  the  amount  so  certified  shall  be  a  discharge  of  the  tax. 
An  executor,  administrator,  trustee  ox  grantee  who  is  aggrieved  by  any 
determination  of  the  tax  commission  may,  within  one  year  after  the  payment 
of  any  tax  to  the  county  treasurer,  apply  by  a  petition  to  the  probate  court 
having  jurisdiction  of  the  estate  of  the  decedent  for  the  abatement  of  said 
tax,  or  any  part  thereof,  and  if  the  court  adjudges  that  said  tax,  or  any 
part  thereof,  was  wrongly  exacted  it  shall  order  an  abatement  of  such  portion 
of  said  tax  as  was  assessed  without  authority  of  law.  Upon  a  final  decision 
ordering  an  abatement  of  any  portion  of  said  tax  the  county  treasurer  shall 
refund  the  amount  adjudged  to  have  been  illegally  exacted,  with  interest 
at  the  legal  rate,  without  any  further  act  or  resolve  making  appropriation 
therefor.  (Gen.  Stats.  (1909),  p.  2003.) 

§  611.    Jurisdiction  of  Probate  Court. 

Sec.  70.  The  probate  court  having  jurisdiction  of  the  settlement  of  the 
estate  of  the  decedent,  subject  to  appeal  as  in  other  cases,  shall  hear  and 
determine  all  questions  relative  to  said  tax,  and  the  county  attorney  of  the 
proper  county,  at  the  request  of  the  tax  commission  or  of  the  county  treas- 
urer, shall  represent  the  state  in  any  such  proceedings.  If  the  court  shall 
find  that  any  tax  remains  due,  it  shall  order  the  executor,  administrator  or 
trustee  to  pay  the  same,  with  interest  and  costs;  and  if  it  appears  that  there 
are  no  goods  or  assets  of  the  estate  in  his  hands,  the  court  may  assess  the 
amount  of  the  tax  against  the  executor,  administrator  or  trustee,  as  if  for  his 
own  debt,  and  may  enforce  compliance  with  such  order  by  proper  procedure 
as  now  authorized  by  probate  practice;  but  the  administrators,  executors, 
trustees  and  grantees  hereinbefore  mentioned  shall  be  personally  liable  only 
for  such  taxes  as  shall  be  payable  while  they  continue  in  the  said  offices  or 
have  title  as  such  grantees,  respectively.  In  the  case  where  the  tax  is  due 
and  payable  by  and  collectible  from  the  beneficiary,  all  actions  shall  be  prose- 
cuted by  the  attorney  general  or  the  county  attorney  of  the  proper  county  in 
the  name  of  the  state,  and  such  actions  may  be  brought  in  the  same  Courts 
as  other  actions  for  money.  (Gen.  Stats.  (1909),  p.  2003.) 

§  612.    Administration  at  Instance  of  Tax  Commission. 

Sec.  71.  If  upon  the  decease  of  a  person  leaving  an  estate  liable  to  a  tax 
under  the  provisions  of  this  act  a  will  disposing  of  such  estate  is  not  offered 
for  probate,  or  an  application  for  administration  made  within  four  months 
after  such  decease,  the  probate  court,  upon  application  by  the  county  attorney 
of  the  proper  county  or  the  attorney  general  at  the  instance  of  the  tax  com- 
mission, shall  appoint  an  administrator  if  it  then  appears  that  there  is  no  will 
in  existence.  (Gen.  Stats.  (1909),  p.  2003.) 


484  INHERITANCE  TAXATION. 

§  613.    Account  of  Executor  not  Settled  Until  Tax  Paid. 

Sec.  72.  No  final  account  of  an  executor,  administrator  or  trustee  shall 
be  allowed  by  the  probate  court  unless  such  account  shows,  and  the  judge 
of  said  court  finds,  that  all  taxes  imposed  by  the  provisions  of  this  act  upon 
any  property  or  interest  therein  belonging  to  the  estate  to  be  settled  by  said 
account  and  already  payable  have  been  paid,  and  that  all  taxes  which  may 
become  due  on  said  estate  have  been  paid  or  settled  as  hereinbefore  provided, 
or  that  the  payment  thereof  to  the  state  is  secured  by  bond  or  deposit  or  by 
lien  on  real  estate.  The  certificate  of  the  tax  commission  and  the  receipt  of 
the  county  treasurer  for  the  amount  of  the  tax  therein  certified  shall  be  con- 
clusive as  to  the  payment  of  the  tax,  to  the  extent  of  said  certification.  (Gen. 
Stats.  (1909),  p.  2003.) 

$  614.    Proceedings  for  Recovery  of  Tax. 

Sec.  73.  The  county  attorney  of  the  proper  county  or  the  attorney  gen- 
eral, at  the  instance  of  the  county  treasurer  or  the  tax  commission,  shall  com- 
merce proceedings  for  the  recovery  of  any  of  said  taxes  within  six  months 
after  the  same  become  payable,  and  also  whenever  the  judge  of  a  probate  court 
certifies  to  him  that  the  final  account  of  an  executor,  administrator  or  trustee 
has  been  filed  in  such  court  and  that  the  settlement  of  the  estate  is  delayed 
because  of  the  nonpayment  of  said  tax.  The  probate  court  shall  so  certify 
upon  the  application  of  any  heir,  legatee  or  other  person  interested  therein, 
and  may  extend  the  time  of  payment  of  said  tax  whenever  the  circumstances 
of  the  ease  require.  (Gen.  Stats.  (1909),  p.  2004.) 

§  615.     Retrospective  Operation  of  Statute. 

See.  74.  This  act  shall  not  apply  to  estates  of  persons  deceased  prior  to 
the  date  when  it  takes  effect,  or  to  property  passing  by  deed^  grant,  sale  or 
gift  made  prior  to  said  date.  (Gen.  Stats.  (1909),  p.  2004.) 

§  616.    Report  of  County  Treasurer. 

Sec.  75.  Each  county  treasurer  shall  make  a  report,  under  oath,  to  the 
state  treasurer  on  the  first  day  of  January,  April,  July  and  October,  respec- 
tively, of  each  year  of  all  taxes  received  by  him  under  this  act,  which  report 
shall  state  for  what  estate  and  by  whom  and  when  paid.  The  form  of  such 
report  may  be  prescribed  by  the  tax  commission,  and  all  moneys  received  in 
pursuance  of  this  act  by  such  treasurer  shall  be  turned  over  to  the  state  treas- 
urer by  the  county  treasurer,  in  such  manner  as  the  laws  at  the  time  in  force 
in  relation  to  drawing  of  state  moneys  from  county  treasurers  shall  direct. 
(Gen.  Stats.  (1909),  p.  2004.) 

§  617.    Commissions  of  County  Treasurer. 

Sec.  76.  The  county  treasurer  shall  retain,  for  the  use  of  the  county,  as 
compensation  to  the  county  for  services  of  county  officers,  out  of  all  taxes 
paid  to  and  accounted  for  by  him  each  year  under  this  act,  five  per  cent  of 
the  tax  paid  on  the  first  fifty  thousand  dollars,  three  per  cent  on  the  next 
fifty  thousand  dollars,  and  two  per  cent  on  all  additional  sums.  (Gen.  Stats. 
(1909),  p.  2004.) 


KANSAS  STATUTE.  485 

§  618.     Taxes  to  be  Paid  into  State  Treasury. 

Sec.  77.  All  taxes  levied  and  collected  under  this  act,  less  any  expenses 
of  collection,  shall  be  paid  into  the  treasury  of  the  state  for  the  benefit  of 
the  general  revenue  fund,  and  shall  be  applicable  to  such  purposes  as  the 
legislature  by  law  may  direct.  (Gen.  Stats.  (1909),  p.  2004.) 

§  619.    Definitions  of  Terms. 

Sec.  78.  The  words  "estate"  and  "property,"  as  used  in  this  act,  shall  be 
taken  to  mean  the  real,  personal  and  mixed  property  or  intsresfr  therein  of 
the  testator,  intestate,  grantor,  bargainer,  vendor  or  donor  ^rhich  shall  pass 
or  be  transferred  to  legatees,  derisees,  heirs,  next  of  kin,  grantees,  donees, 
vendees,  or  successors,  and  shall  include  all  personal  property  within  or 
without  the  state.  The  word  "transfer,"  as  used  in  this  act,  shall  be  taken 
to  include  the  passing  of  property  or  any  interest  therein  in  possession  or 
enjoyment,  present  or  future,  by  inheritance,  descent,  devise,  succession,  be- 
quest, grant,  deed,  bargain,  sale,  gift  or  appointment  in  the  manner  herein 
prescribed.  The  word  "decedent,"  as  used  in  this  act  shall  include  the  testator, 
intestate,  grantor,  bargainer,  vendor,  or  donor.  (Gen.  Stats.  (1909),  p.  2004.) 


486  INHERITANCE  TAXATION. 

CHAPTER  XXXII. 
KENTUCKY  STATUTE. 

(Acts  of  1906;  Russell's  Statutes  (1909),  pp.  lSgl-1585.) 

§  620.  Transfers  Subject  to  Tax — Rate  of  Taxation — Persons  Liable. 

§  62,1.  Estates  for  Years  or  Life — Remainders  and  Contingent  Interests. 

§  622.  Bequests  to  Executors  in  Lieu  of  Compensation. 

§  623.  Time  for  Payment — Interest  and  Discount. 

§  624.  Penalty  for  Nonpayment. 

§  625.  Collection  of  Tax. 

§  626.  Sale  of  Property  to  Pay  Tax. 

§  &27.  Payment  by  Executor  to  Sheriff  or  Collector — Receipts  and  Vouchers. 

§  628.  Refund  to  Legatee  of  Overpayment. 

§  629.  Transfer  of  Stock  or  Loans — Payment  of  Tax. 

§  630.  Appraisers  and  Appraisement. 

§  631.  Appraiser  Taking  Other  Than  Regular  Fees — Penalty. 

§  632.  Jurisdiction  of  County  Court. 

§  633.  Records  to  be  Kept  by  County  Clerk. 

§  634.  Duties    of    Sheriff    or    Collector    in    Enforcing    and    Accounting    for 

Taxes. 

§  634a.  Refund  Where  Legacy  Less  Than  Five  Hundred  Dollars. 

§  620.     Transfers  Subject  to  Tax — Bate  of  Taxation — Persons  Liable. 

See.  6117.  All  property  which  shall  pass,  by  will  or  by  the  intestate 
laws  of  this  state,  from  any  person  who  may  die  seised  or  possessed  of  the 
same  while  a  resident  of  this  state,  or  if  such  decedent  was  not  a  resident 
of  this  state  at  the  time  of  death,  which  property,  or  any  part  thereof,  shall 
be  within  this  state,  or  any  interest  therein,  or  income  therefrom,  which 
shall  be  transferred  by  deed,  grant,  sale  or  gift,  made  in  contemplation  of 
the  death  of  the  grantor  or  bargainer,  or  intended  to  take  effect  in  posses- 
sion or  enjoyment  after  such  death,  to  any  person  or  persons,  or  to  any  body 
politic  or  corporate,  in  trust  or  otherwise,  or  by  reason  whereof  any  person 
or  body  politic  or  corporate  shall  become  beneficially  entitled,  in  possession 
or  expectancy,  to  any  property,  or  to  the  income  thereof,  other  than  to  or 
for  the  use  of  his  or  her  father,  mother,  husband,  wife,  lawful  issue,  the 
wife  or  widow  of  a  son,  or  the  husband  of  a  daughter,  or  any  child  or  chil- 
dren adopted  as  such  in  conformity  with  the  laws  of  the  commonwealth  of 
Kentucky,  and  any  lineal  descendant  of  such  decedent  born  in  lawful  wed- 
lock, shall  be,  and  is,  subject  to  a  tax  of  five  dollars  on  every  hundred  dol- 
lars of  the  fair  cash  value  of  such  property,  and  at  a  proportionate  rate 
for  any  less  amount,  to  be  paid  to  the  sheriff  or  collector  of  the  proper 
county,  as  hereinafter  defined  for  the  general  use  of  the  commonwealth; 
and  all  administrators,  executors  and  trustees  shall  be  liable  for  any  and 
all  taxes  until  the  same  shall  have -been  paid  as  hereinafter  directed:  Pro- 
vided, that  the  first  five  hundred  dollars  of  every  estate  shall  not  be  subject 
to  such  duty  or  tax.  (Russ.  Stats.  (1909),  p.  1521.) 


KENTUCKY  STATUTE.  487 

§  621.    Estates  for  Tears  or  Life — Remainders  and  Contingent  Interests. 

Sec.  6118.  When  any  grant,  gift,  devise,  legacy  or  succession  upon  which 
a  tax  is  imposed  by  section  1  [6117]  of  this  article  shall  be  an  estate,  in- 
come or  interest  for  a  term  of  years  or  for  life,  or  determinable  upon  any 
future  or  contingent  event,  or  shall  be  a  remainder,  reversion  or  other  ex- 
pectancy, real  or  personal,  the  entire  property  or  fund  by  which  such  estate, 
income  or  interest  is  supported,  or  of  which  it  is  a  part,  shall  be  appraised 
immediately  after  the  death  of  the  decedent,  and  the  fair  cash  value  thereof, 
estimated  at  the  price  it  would  bring  at  a  fair  voluntary  sale,  determined 
in  the  manner  provided  in  section  11  of  this  article  and  the  tax  prescribed 
shall  be  immediately  due  and  payable  to  the  sheriff  or  collector  of  the 
proper  county,  and,  together  with  the  interest  thereon,  shall  be  and  remain 
a  lien  on  said  property  until  the  same  is  paid:  Provided,  that  the  person 
or  persons,  or  body  politic  or  corporate,  beneficially  interested  in  the  prop- 
erty chargeable  with  said  tax,  may  elect  not  to  pay  the  same  until  they 
shall  come  into  the  actual  possession  or  enjoyment  of  such  property,  and 
in  that  case  such  person  or  persons,  or  body  politic  or  corporate,  shall  exe- 
cute a  bond  to  the  commonwealth  of  Kentucky,  in  a  sum  of  twice  the 
amount  of  the  tax  arising  upon  personal  estate,  with  such  sureties  as  the 
county  court  may  approve,  conditioned  for  the  payment  of  said  tax  and 
interest  thereon,  at  such  time  or  period  as  they  or  their  representatives  may 
come  into  the  actual  possession  or  enjoyment  of  such  property,  which  bond 
shall  be  filed  in  the  office  of  the  county  clerk  of  the  proper  county:  Provided, 
further,  that  such  person  shall  make  a  full  and  verified  return  of  such  prop- 
erty to  said  court,  and  file  the  same  in  the  office  of  the  county  clerk  within 
one  year  of  the  death  of  the  decedent,  and  within  that  period  enter  into 
such  surety  and  renew  the  same  every  five  years.  (Russ.  Stats.  (1909),  p. 
1522.) 

§  622.    Bequests  to  Executors  in  Lieu  of  Compensation. 

Sec.  6119.  Whenever  a  decedent  appoints  or  nominates  one  or  more  ex- 
ecutors or  trustees,  and  makes  a  bequest  or  devise  of  property  to  them  in 
lieu  of  commissions  or  allowances,  which  otherwise  would  be  liable  to  said 
tax,  or  appoints  them  his  residuary  legatees  and  said  bequest,  devises,  or 
residuary  legacies  exceed  what  would  be  a  lawful  compensation  for  their 
services,  such  excess  shall  be  liable  to  said  tax,  and  the  county  court  in 
which  the  personal  representatives  of  the  decedent  has  qualified  shall  fix 
the  compensation.  (Russ.  Stats.  (1909),  p.  1522.) 

§  623.     Time  for  Payment — Interest  and  Discount. 

Sec.  6120.  All  taxes  imposed  by  this  chapter,  unless  otherwise  herein 
provided  for,  shall  be  due  and  payable  at  the  death  of  the  decedent,  and  if 
the  same  are  paid  within  eighteen  months,  no  interest  shall  be  charged 
and  collected  thereon,  but  if  not  so  paid,  interest  at  the  rate  of  ten  per 
centum  per  annum  shall  be  charged  and  collected  from  the  time  said  tax 
accrued:  Provided,  that  if  said  tax  is  paid  within  nine  months  from  the 
accming  thereof  a  discount  of  five  per  centum  shall  be  allowed  and  deducted 
from  said  tax.  And  in  all  cases  where  the  executors,  administrators,  or 


488  INHERITANCE  TAXATION. 

trustees  do  not  pay  such  tax  within  eighteen  months  from  the  death  of  th« 
decedent,  they  shall  be  required  to  give  a  bond  in  the  form  and  to  the  effect 
prescribed  in  section  2  [6118]  of  this  chapter  for  the  payment  of  said  tax, 
together  with  interest.  (Buss.  Stats.  (1909),  p.  1522.) 

§  624.    Penalty  for  Nonpayment. 

Sec.  6121.  The  penalty  of  ten  per  centum  per  annum  imposed  by  section 
4  [6120]  hereof,  for  the  nonpayment  of  said  tax,  shall  not  be  charged  in 
case  where,  by  reason  of  claims  made  upon  the  estate,  necessary  litigation, 
or  other  unavoidable  cause  of  delay,  the  estate  of  any  decedent,  or  a  part 
thereof,  cannot  be  settled  at  the  end  of  eighteen  months  from  the  death 
of  the  decedent;  and  in  such  case  only  six  per  centum  per  annum  shall  be 
charged  upon  the  said  tax  from  the  expiration  of  said  eighteen  months  until 
the  cause  of  such  delay  is  removed.  (Buss.  Stats.  (1909),  p.  1522.) 

§  625.     Collection  of  Tax. 

Sec.  6122.  Any  administrator,  executor  or  trustee  having  in  charge  or 
trust  any  legacy  or  property  for  distribution  subject  to  the  said  tax,  shall 
deduct  the  tax  therefrom,  or  if  the  legacy  or  property  be  not  money,  he  shall 
collect  the  tax  thereon  upon  the  fair  cash  value  thereof,  from  the  legatee 
or  person  entitled  to  such  property,  and  he  shall  not  deliver,  or  be  compelled 
to  deliver,  any  specific  legacy  or  property  subject  to  tax  to  any  person 
until  he  shall  have  collected  the  tax  thereon  and  whenever  any  such  legacy 
shall  be  charged  upon  or  payable  out  of  real  estate,  the  executor,  adminis- 
trator or  trustee  shall  collect  said  tax  from  the  distributee  thereof,  and  the 
same  shall  remain  a  charge  on  such  real  estate  until  paid;  if,  however,  such 
legacy  be  given  in  money  to  any  person  for  a  limited  period,  the  executor, 
administrator  or  trustee  shall  retain  the  tax  upon  the  whole  amount;  but 
if  it  be  not  in  money,  he  shall  make  application  to  the  county  court  to  make 
an  apportionment,  if  the  case  require  it,  of  the  sum  to  be  paid  into  his  hands 
by  such  legatees,  and  for  such  further  orders  relative  thereto  as  the  case 
may  require.  (Russ.  Stats.  (1909),  p.  1523.) 

§  626.     Sale  of  Property  to  Pay  Tax. 

Sec.  6123.  All  executors,  administrators  and  trustees  shall  have  full 
power  to  sell  so  much  of  the  property  of  the  decedent  as  will  enable  them 
to  pay  said  tax,  in  the  same  manner  as  they  may  be  enabled  by  law  to  do 
for  the  payment  of  debts  of  the  estate,  and  the  amount  of  said  tax  shall  be 
paid  as  hereinafter  directed.  (Buss.  Stats.  (1909),  p.  1523.) 

§  627.  Payment  by  Executor  to  Sheriff  or  Collector — Receipts  and  Vouchers. 
Sec.  6124.  Every  sum  of  money  retained  by  an  executor,  administrator 
or  trustee  or  paid  into  his  hands,  for  any  tax  on  property,  shall  be  paid  by 
him,  within  thirty  days  thereafter,  to  the  sheriff  or  collector  of  the- county 
in  which  the  said  tax  is  due  and  payable  and  the  said  sheriff  or  collector 
shall  give  and  every  executor,  administrator  or  trustee  shall  take,  duplicate 
receipts  for  such  payment,  one  of  which  receipts  said  executor,  administrator 
or  trustee  shall  immediately  send  to  the  auditor  of  public  accounts,  whose 


KENTUCKY  STATUTE.  489 

duty  it  shall  be  to  charge  the  said  sheriff  or  collector  so  receiving  the  tax 
with  the  amount  thereof,  and  said  auditor  shall  seal  said  receipt  with  the 
seal  of  his  office  and  countersign  the  same,  and  return  it  to  the  executor, 
administrator  or  trustee,  whereupon  it  shall  be  a  proper  voucher  in  the 
settlement  of  his  accounts;  and  an  executor,  administrator  or  trustee  shall 
not  be  entitled  to  credits  in  his  accounts,  nor  be  discharged  from  liability 
for  such  tax,  nor  shall  said  estate  be  distributed  unless  he  shall  produce  a 
receipt  so  sealed  and  countersigned  by  the  auditor,  or  a  copy  thereof,  certi- 
fied by  him.  (Russ.  Stats.  (1909),  p.  1523.) 

§  628.    Refund  to  Legatee  of  Overpayment. 

Bee.  6125.  Whenever  any  debts  shall  be  proven  against  the  estate  of  a 
decedent  after  the  payment  of  legacies  or  distribution  of  property,  from 
which  the  said  tax  has  been  deducted  or  upon  which  it  has  been  paid,  and 
a  refund  is  made  by  the  legatee,  devisee,  heir  or  next  of  kin,  a  proportion 
of  the  tax  so  deducted  or  paid  shall  be  repaid  to  him  by  the  executor,  ad- 
ministrator or  trustee,  if  the  said  tax  has  not  been  paid  to  the  sheriff  or 
collector  or  to  the  auditor,  or  by  the  auditor  if  it  has  been  go  paid.  (Buss. 
Stats.  (1909),  p.  1523.) 

§  629.     Transfer  of  Stock  or  Loans — Payment  of  Tax. 

Sec.  6126.  Whenever  any  foreign  executor  or  administrator  shall  assign 
or  transfer  any  stocks  or  loans  in  this  state  standing  in  the  name  of  a  de- 
cedent, or  held  in  trust  for  a  decedent,  which  shall  be  liable  to  the  said 
tax,  such  tax  shall  be  paid  to  the  sheriff  or  collector  of  the  proper  county  on 
the  transfer  thereof;  otherwise  the  corporation  permitting  such  transfer 
shall  become  liable  to  pay  such  tax.  (Russ.  Stats.  (1909),  p.  1523.) 

§  630.    Appraisers  and  Appraisement. 

Sec.  6127.  When  the  value  of  any  inheritance,  devise,  bequest  or  other 
interest  subject  to  the  payment  of  said  tax  is  uncertain,  the  county  court 
in  which  the  said  tax  settlement  proceedings  are  pending,  on  the  application 
of  any  interested  party,  or  upon  his  own  motion,  shall  appoint  some  com- 
petent person  as  appraiser,  as  often  as  and  whenever  occasion  may  require, 
whose  duty  it  shall  be  forthwith  to  give  such  notice  by  mail  to  all  persons 
known  to  have  or  claim  an  interest  in  such  property,  and  to  such  persons 
as  the  court  may  by  order  direct,  of  the  time  and  place  at  which  he  will 
appraise  such  property,  and  at  such  time  and  place  to  appraise  the  same  and 
make  a  report  thereof,  in  writing,  to  said  court,  together  with  such  other 
facts  in  relation  thereto  as  said  court  may  by  order  require  to  be  filed  with 
the  clerk  of  said  court;  and  from  this  report  the  said  court  shall,  by  order, 
forthwith  assess  and  fix  the  fair  cash  value,  as  hereinbefore  provided,  of  all 
inheritances,  devises,  bequests,  or  other  interests  and  the  tax  to  which  the 
same  is  liable,  and  shall  immediately  cause  notice  thereof  to  be  given,  by 
mail,  to  all  parties  known  to  be  interested  therein;  and  the  value  of  every 
future  or  contingent  or  limited  estate,  income,  or  interest  shall,  for  the 
purpose  of  this  chapter,  be  determined  by  the  rule,  method  and  standards 
of  mortality  prescribed  by  the  mortality  tables  authorized  by  Kentucky 


490  INHERITANCE  TAXATION. 

statutes  for  ascertaining  the  value  of  life  estates,  annuities  and  remainder 
interests  save  that  the  rate  of  interest  to  be  assessed  in  computing  the 
present  value  of  all  future  interest  and  contingencies  shall  be  five  per 
centum  per  annum;  and  the  insurance  commissioner  shall,  on  the  applica- 
tion of  said  court,  determine  the  value  of  such  future  or  contingent  or  lim- 
ited estate,  income  or  interest,  upon  the  facts  contained  in  such  report,  and 
certify  the  same  to  the  court,  and  his  certificate  shall  be  conclusive  evidence 
that  the  method  of  computation  adopted  therein  is  correct.  The  said  ap- 
praiser shall  be  paid  by  the  personal  representative  of  the  decedent,  out 
of  any  funds  that  may  be  or  may  come  into  his  hands  on  account  of  said 
tax,  on  the  certificate  of  the  court,  at  the  rate  of  three  dollars  per  day  for 
every  day  actually  and  necessarily  employed  in  said  appraisement,  together 
with  his  actual  and  necessary  traveling  expenses.  (Russ.  Stats.  (1909),  p. 
1524.) 

§  631.    Appraiser  Taking  Other  Than  Regular  Fees — Penalty. 

Sec.  6128.  Any  appraiser  appointed  by  virtue  of  this  chapter  who  shall 
take  any  fee  or  reward  from  any  executor,  administrator,  trustee,  legatee, 
next  of  kin  or  heir  of  decedent,  or  from  any  other  person  liable  to  pay  said 
tax,  or  any  portion  thereof,  shall  be  guilty  of  a  misdemeanor,  and  upon  con- 
viction thereof  shall  be  fined  not  less  than  two  hundred  dollars  nor  more 
than  five  hundred  dollars,  or  imprisoned  in  the  county  jail  sixty  days,  or 
both  so  fined  and  imprisoned,  and  in  addition  thereto  the  court  shall  dismiss 
him  from  such  service.  (Russ.  Stats.  (1909),  p.  1524.) 

§  632.    Jurisdiction  of  County  Court. 

Sec.  6129.  The  county  court  in  the  county  in  which  is  situated  the  real 
property  of  a  decedent  who  was  not  a  resident  of  the  state,  or  in  the  county 
of  which  the  decedent  was  a  resident  at  the  time  of  his  death,  shall  have 
jurisdiction  to  hear  and  determine  all  questions  in  relation  to  the  tax  aris- 
ing under  the  provisions  of  this  chapter  and  the  court  first  acquiring  juris- 
diction hereunder  shall  retain  the  same,  to  the  exclusion  of  every  other. 
(Russ.  Stats.  (1909),  p.  1524.) 

§  633.    Records  to  be  Kept  by  County  Clerk. 

Sec.  6130.  The  county  clerk  of  each  county  shall  keep  a  book  to  be  fui- 
nished  by  the  auditor,  in  which  he  shall  enter  the  values  of  inheritances, 
devises,  bequests  and  other  interests  subject  to  the  payment  of  such  tax, 
and  the  tax  assessed  thereon,  and  the  amounts  of  any  receipts  for  payments 
thereon  filed  with  him,  which  book  shall  be  kept  by  him  as  a  public  record. 
(Russ.  Stats.  (1909),  p.  1524.) 

§  634.  Duties  of  Sheriff  or  Collector  in  Enforcing  and  Accounting  for  Taxes. 
Sec.  6131.  'The  sheriff  or  collector  of  each  county  shall  collect  and  pay 
to  the  auditor  all  taxes  that  may  be  due  and  payable  under  this  chapter, 
who  shall  give  him  the  receipt  therefor;  of  which  collections  and  payment 
he  shall  make  a  report,  under  oath,  to  the  auditor  of  public  accounts  at 
the  same  time  and  in  the  same  manner  as  provided  by  law  that  he  shall 


KENTUCKY  STATUTE.  491 

report  and  pay  the  state's  revenue,  stating  for  what  estate  paid,  and  in  such 
form  and  containing  such  particulars  as  the  auditor  may  prescribe;  and  for 
all  such  taxes  collected  by  him  and  not  paid  to  tho  auditor  by  the  first  day 
of  March  of  each  year  he  shall  pay  interest  at  the  rate  of  ten  per  centum 
per  annum.  (Russ.  Stats.  (1909),  p.  1525.) 

§  63  la.     Refund  Where  Legacy  Less  Than  Five  Hundred  Dollars. 

Sec.  6132.  That  whenever  it  shall  be  made  to  appear  by  affidavit  or 
otherwise,  to  the  satisfaction  of  the  auditor  of  public  accounts  that  any 
money  has  been  paid  under  section  4281a  of  the  Kentucky  Statutes,  where 
the  amount  of  any  legacy  to  any  legatee  was  no  more  than  five  hundred 
dollars,  and  where  said  payment  was  made  prior  to  the  27th  day  of  October, 
1908,  the  date  of  the  decision  of  the  court  of  appeals  of  Kentucky  in  Booth's 
Executor  against  the  Commonwealth,  the  auditor  of  public  accounts  is  hereby 
authorized  and  directed  to  draw  his  warrant  on  the  treasurer  of  the  state 
for  the  sum  or  sums  so  paid  in  favor  of  the  person,  whether  executor  or  ad- 
ministrator or  other  persons  who  so  paid  the  same.  (This  last  section  was 
adopted  March  21,  1910:  Acts  of,  1910,  p.  95.) 


492  INHERITANCE  TAXATION. 

CHAPTER  XXXIII. 
LOUISIANA  STATUTE. 

(Laws  of  1906,  p.  173;  3  Wolff's  Constitution  and  EeviseA  Laws  of  1904-08, 

pp.  769-778.) 

§  635.  Transfers  Subject  to  Tax — Bates. 

§  636.  Transfers  not  Subject  to  Tax. 

§  637.  .  Taking  Possession  of  Succession  Without  Authority  of  Court. 

§  638.  Executor  to  Fix  Amount  of  Tax. 

§  639.  Collection  of  Tax. 

§  640.  Liability  of  Executor— No  Discharge  Until  Tax  Paid. 

§  641.  Duty  of  Heir  When  Administration  not  Ordered  by  Court. 

§  642.  Payment  of  Tax. 

§  643.  Sale  of  Property  to  Pay  Tax. 

§  644.  Liability  of  Heir  for  Legacy  Tax. 

§  645.  Search  by  Tax  Collector. 

§  646.  Appointment  of  Executor  When  Will  Found. 

§  647.  Procedure  Where  No  Will  Found. 

§  648.  Proceedings  by  Heir  or  Legatee — Costs  and  Attorney  Fee. 

§  649.  Eights  of  Creditors  Preserved. 

§  650.  Tax  on  Entire  Succession  to  be  Paid  When  Accepted. 

§  651.  Transfer  or  Delivery  of  Stocks,  Deposits  and  Other  Property. 

§  652.  Burden  of  Proof  to  Establish  Exemption. 

§  653.  Jurisdiction  of  District  Court. 

§  654.  Curator  Ad  Hoc  to  Represent  Nonresident  and  Unknown  Heira. 

§  655.  Commissions  of  Tax  Collector  and  Clerk  of  Court. 

§  656.  Attorney  to  Assist  Clerk  of  Court — Fees. 

§  657.  Valuation  of  Annuities. 

§  658.  Interest  on  Delinquent  Tax. 

§  659.  Costs  to  be  Borne  by  Mass  of  Succession. 

§  635.     Transfers  Subject  to  Tax — Eates. 

Sec.  1.  Be  it  enacted  by  the  general  assembly  of  the  state  of  Louisiana, 
That  there  is  now  and  shall  hereafter  be  levied,  solely  for  the  support  of  the 
public  schools,  on  all  inheritances,  legacies  and  other  donations  mortis  causa 
to  or  in  favor  of  the  direct  descendants  or  ascendants  of  the  decedent,  a  tax 
of  two  per  centum,  and  on  all  such  inheritances  or  dispositions  to  or  in  favor 
of  the  collateral  relatives  of  the  deceased,  or  strangers,  a  tax  of  five  per 
centum  on  the  amount  or  tho  actual  cash  value  thereof  at  the  time  of  the 
death  of  the  decedent.  (3  Wolff's  Const.  &  Rev.  Laws  1904-08,  p.  769.) 

§  636.     Transfers  not  Subject  to  Tax. 

Sec.  2.  Be  it  further  enacted,  etc.,  That  said  tax  shall  not  be  imposed  in 
the  following  cases: 


LOUISIANA  STATUTE.  493 

a.  On  any  inheritance  legacy  or  other  donation  mortis  causa  to  or  in  favor 
of  any  ascendant  or  descendant  of  the  decedent  below  ten  thousand  dollars 
in  amount  or  value. 

b.  On  any  legacy   or  other  donation   mortis   causa  to   or  in  favor   of  an 
educational,  religious  or  charitable  institution. 

c.  When  the   property   inherited,   bequeathed   or   donated   shall   have   borne 
its  just  proportion  of  taxes  prior  to  the  time  of  such  donation,  bequest  or 
inheritance.     (3  Wolff's  Const.  &  Rev.  Laws  1904r-08,  p.  769.) 

§  637.     Taking  Possession  of  Succession  Without  Authority  of  Court. 

Sec.  3.  Be  it  further  enacted,  etc.,  It  shall  be  unlawful  for  any  heir, 
l«gatee  or  other  beneficiary  of  a  donation  mortis  causa  to  take  or  be  in 
possession  of  any  part  of  the  things  or  property  composing  the  inheritance, 
legacy  or  other  donation  mortis  causa,  or  to  dispose  of  the  same  or  any  part 
thereof,  until  he  shall  have  obtained  the  authority  of  the  court  to  that  effect, 
as  hereafter  provided;  and  in  case  he  shall  so  take  or  be  in  possession  or 
shall  so  dispose  of  such  things  or  property,  or  any  part  thereof,  he  shall  no 
longer  have  the  right  of  renouncing  such  inheritance  or  donation  mortis 
causa,  and  shall  remain  personally  liable  for  the  tax  thereon;  but  he  may, 
without  waiting  for  authority  do  such  acts  as  may  seem  necessary  to  pre- 
serve the  property  from  waste,  damage  or  loss.  (3  Wolff's  Const.  &  Kev. 
Laws  1904-08,  p.  770.) 

§  638.    Executor  to  Fix  Amount  of  Tax. 

Sec.  4.  Be  it  further  enacted,  etc.,  The  executor  of  the  will  of  a  person 
deceased,  or  the  administrator  of  his  succession,  shall,  after  payment  of  his 
debts,  proceed  against  the  tax  collector  and  all  the  heirs  and  legatees  of  the 
deceased  summarily,  by  rule  before  the  court  which  has  jurisdiction  of  the 
succession,  to  fix  the  amount  of  tax  due  by  each  heir  or  legatee,  and  on  trial 
thereof  the  court  shall  render  judgment  for  the  same  against  each  heir  or 
legatee,  with  interest  and  costs,  aa  hereinafter  provided.  (3  Wolff's  Const.  & 
Rev.  Laws  1904-08,  p.  770.) 

§  639.     Collection  of  Tax. 

Sec.  5.  Be  it  further  enacted,  etc.,  The  executor  or  administrator  shall 
thereupon  pay  to  the  tax  collector  the  amount  of  tax,  with  interest  and  costs, 
so  fixed,  on  each  inheritance,  legacy  or  donation,  out  of  the  funds  comprised 
therein,  if  sufficient.  Should  there  not  be  sufficient  funds,  the  court  shall,  on 
the  application  of  the  heir  or  legatee,  grant  an  order  for  the  sale  of  ther 
property  composing  such  inheritance,  legacy  or  donation,  or  so  much  thereof 
as  may  be  necessary,  for  the  purpose  of  paying  such  judgment.  If  the  same 
be  not  paid  by  the  heir  or  legatee,  or  an  order  of  sale  be  not  granted,  as 
above  provided,  within  thirty  days  after  the  date  of  the  judgment,  the  court 
shall,  on  the  application  of  the  executor  or  administrator,  grant  an  order  of 
sale  for  the  said  purpose,  as  above  provided,  and  the  executor  or  administrator 
shall  pay  the  said  judgment  out  of  the  proceeds  of  the  sale. 

Such  sale  shall  be  made  in  such  manner,  and  on  such  terms  and  conditions 
as  the  court  shall  prescribe,  and  the  expense  thereof  shall  be  borne  by  the 
heir  or  legatee.  (3  Wolff's  Const.  &  Rev.  Laws  1904-08,  p.  770.) 


494i  INHERITANCE  TAXATION. 

§  640.    Liability  of  Executor— No  Discharge  Until  Tax  Paid. 

Sec.  6.  Be  it  further  enacted,  etc.,  No  executor  or  administrator  shall 
deliver  any  inheritance  or  legacy  until  the  tax  thereon  shall  be  fixed  and 
paid,  as  herein  provided;  otherwise  he,  together  with  his  surety,  shall  be 
personally  liable  for  said  tax,  with  interest  and  cost.  And  no  executor  or 
administrator  shall  be  discharged  until  it  is  shown  that  all  taxes  under  this 
act,  due  by  the  heirs  and  legatees,  have  been  paid,  or  until  it  is  judicially 
determined  by  the  process  herein  provided  that  no  tax  is  due.  (3  Wolff'a 
Const.  &  Eev.  Laws  1904-08,  p.  771.) 

§  641.    Duty  of  Heir  When  Administration  not  Ordered  by  Court. 

Sec.  7.  Be  it  further  enacted,  etc.,  In  all  cases  in  which  an  administration 
is  not  ordered  by  the  court,  the  legal  or  instituted  heir,  or  universal  or  residuary 
legatee,  shall  within  six  months  after  the  death  of  the  decedent,  or,  should 
there  be  a  will,  within  the  same  time  after  the  discovery  of  the  same,  present 
to  the  court  a  detailed  descriptive  list,  sworn  to  and  subscribed  by  him,  of 
all  items  of  property  contained  in  and  composing  the  estate  of  the  decedent, 
and  therein  shall  state  the  actual  cash  value  of  each  such  item  at  the  time 
of  the  death  of  the  decedent,  and  service  thereof  shall  be  made  on  the  tax 
collector  who  shall  have  the  right  to  traverse  the  same.  Should  the  deceased 
have  made  special  or  particular  legacies  or  donations  mortis  causa,  the  legatee 
shall  also  be  served,  and  after  summarily  hearing  the  said  parties  the  court 
shall  fix  the  amount  of  tax  due  as  aforesaid  by  each  such  heir  or  legatee, 
and  shall  render  judgment  therefor,  with  interest  and  cost,  against  each  of 
them.  (3  Wolff's  Const.  &  Eev.  Laws  1904-08,  p.  771.) 

§  642.    Payment  of  Tax. 

Sec.  8.  Be  it  further  enacted,  etc.,  In  the  same  manner  as  provided  in 
section  5,  the  heir  or  universal  or  residuary  legatee  shall  thereupon  pay  or 
take  measures  for  the  payment  of  the  tax  due  on  all  special  or  particular 
legacies  or  donations.  (3  Wolff's  Const.  &  Eev.  Laws  1904-08,  p.  771.) 

§  643.    Sale  of  Property  to  Pay  Tax. 

Sec.  9.  Be  it  further  enacted,  etc.,  The  heir  or  universal  or  residuary 
legatee  may  likewise  obtain  an  order  for  the  sale  of  the  property  of  his 
inheritance  or  legacy,  or  part  thereof,  for  the  purpose  of  paying  the  tax 
thereon.  But  if  such  tax  be  not  paid,  or  such  order  of  sale  be  not  made 
within  thirty  days  after  the  date  of  the  judgment  fixing  the  amount  of  the 
tax,  a  similar  order  for  the  same  purpose  shall  be  granted  on  the  application 
of  the  tax  coEector,  and  thereunder  any  property  forming  part  of  the  inher- 
itance or  legacy  may  be  sold,  and  the  proceeds  thereof  shall  be  applied  to 
the  payment  of  the  tax  with  interest  and  costs.  (3  Wolff's  Const.  &  Eev. 
Laws  1904-08,  p.  771.) 

§  644.    Liability  of  Heir  for  Legacy  Tax. 

Sec.  10.  Be  it  further  enacted,  etc.,  The  heir  or  residuary  or  universal 
legatee  shall  not  deliver  any  legacy  until  the  tax  thereon  shall  have  been  fixed 


LOUISIANA  STATUTE.  495 

and  paid;  otherwise  lie  shall  be  personally  liable  for  the  said  tax,  with  interest 
and  costs.     (3  Wolff's  Const.  &  Kev.  Laws  1904-08,  p.  772.) 

§  645.     Search  by  Tax  Collector. 

Sec.  11.  Be  it  further  enacted,  etc.,  If  during  the  six  months  next  follow- 
ing the  death  of  any  person  leaving  property,  movable  or  immovable,  within 
this  state,  an  administration  of  his  succession  be  not  applied  for,  or  his  legal 
or  instituted  heir  or  universal  or  residuary  legatee  do  not  apply  to  the  court 
to  be  placed  in  possession  thereof,  as  herein  provided,  the  court  shall  ex  parte 
and  on  the  application  of  the  tax  collector  grant  an  order  directing  that  a 
search  be  made  for  the  will  of  the  deceased  by  a  notary  public,  and  in  aid 
of  the  same  may  order  that  all  persons  having  in  their  possession  or  control 
any  books,  papers  or  documents  of  the  deceased,  or  any  bank  box,  safe  deposit 
vault  or  other  receptacle  likely  or  designed  to  contain  the  same,  shall  open 
such  receptacle  and  exhibit  the  contents  thereof,  as  well  as  all  other  books, 
papers  and  documents  of  the  deceased,  to  the  said  notary.  (3  Wolff's  Const. 
&  Eev.  Laws  1904-08,  p.  772.) 

§  646.    Appointment  of  Executor  When  Will  Found. 

See.  12.  Be  it  further  enacted,  etc.,  Should  the  said  notary  find  any  docu- 
ment appearing  to  be  the  will  of  the  deceased,  he  shall  take  possession  of 
the  same  and  produce  it  in  court;  and  on  application  of  the  tax  collector,  or 
of  any  party  in  interest,  the  court  shall  proceed  to  the  probate  thereof,  as 
now  provided  by  law.  If  an  executor  be  therein  appointed,  the  person  named 
shall  be  notified,  and  if  he  do  not  within  ten  days  after  notification  accept 
the  appointment,  and  if  within  the  ten  days  next  following  this  delay  no 
person  entitled  to  be  appointed  dative  testamentary  executor  shall  apply  for 
the  appointment,  then  the  public  administrator  in  the  parish  of  Orleans, 
and  in  the  other  parishes  the  tax  collector,  shall  be  appointed  dative  testa- 
mentary executor  of  the  said  decedent,  and  the  administration  of  his  succession 
shall  proceed  as  herein  directed  and  according  to  existing  law.  (3  Wolff's 
Const.  &  EOT.  Laws  1904-08,  p.  772.), 

§  647.    Procedure  Where  No  Will  Found. 

Sec.  13.  Be  it  further  enacted,  etc.,  If  the  notary  can  find  no  will,  he  shall 
report  the  fact  to  the  court;  and  thereupon  the  tax  collector  shall  proceed 
against  the  legal  heir  or  heirs  of  the  deceased  summarily  by  rule  to  fix  the 
amount  of  tax  due  by  him  or  them,  and  each  of  the  heirs  shall  be  ordered, 
within  a  delay  to  be  fixed  by  the  court,  which  may  be  extended  from  time  to 
time  in  the  discretion  of  the  court,  to  make  and  file  a  detailed  descriptive 
list,  sworn  to  and  subscribed  by  him,  of  all  the  items  of  property  contained 
in  and  composing  the  estate  of  the  decedent,  stating  therein  the  actual  cash 
value  of  each  such  item  at  the  time  of  the  death  of  the  decedent,  and  the  tax 
collector  shall  have  a  right  to  traverse  the  same.  On  trial  of  the  rule  the 
court  shall  fix  the  amount  of  tax  due  by  each  of  the  heirs,  and  shall  render 
judgment  for  the  same  against  each  of  them,  and  in  such  case,  as  well  as  in 
the,  cases  mentioned  in  section  12,  shall  include  in  the  costs  payable  by  the 


496  INHERITANCE  TAXATION. 

heir  or  legatee  a  fee  of  not  more  than  ten  per  cent  on  the  amount  of  tax 
due  by  each  heir  or  legatee  in  favor  of  the  attorney  for  the  tax  collector  In 
the  same  manner  and  under  the  same  conditions  as  provided  in  sections  5  and 
9  of  this  act,  such  heirs  or  legatees  shall  have  the  right  to-  procure  the  sale 
of  their  inheritances  or  legacies  for  the  purpose  of  paying  the  tax  due 
thereon,  with  interest,  costs  and  attorney's  fees;  and  if  payment  thereof  be 
not  made  by  the  heir  or  legatee,  or  if  an  order  of  sale,  as  above  provided, 
be  not  granted,  within  thirty  days  after  the  date  of  the  judgment,  the  tax 
collector  shall  be  entitled  to  a  similar  order,  and  thereunder  any  property 
forming  part  of  the  inheritance  or  legacy  may  be  sold.  (3  Wolff's  Const.  & 
Rev.  Laws  1904-08,  p.  773.) 

§  648.    Proceedings  by  Heir  or  Legatee — Costs  and  Attorney  Fee. 

Sec.  14.  Be  it  further  enacted,  etc.,  Should  there  be  more  than  one  legal 
or  instituted  heir  or  universal  or  residuary  legatee  any  one  of  them  may 
institute  the  proceedings  provided  by  this  act,  and  the  others  shall  be  made 
parties  thereto,  and  such  heir  shall  be  entitled  to  recover  out  of  the  mass 
of  the  succession  one  reasonable  attorney's  fee,  besides  his  costs.  (3  Wolff's 
Const.  &  Rer.  Laws  1904-08,  p.  773.) 

§  649.    Bights  of  Creditors  Preserved. 

Sec.  15.  Be  it  further  enacted,  etc.,  Nothing  contained  in  this  act  shall 
affect  the  rights  of  creditors  of  persons  deceased,  or  the  rights  of  the  cred- 
itors of  the  heirs  or  legatees  of  such  persons,  as  established  by  the  general 
law.  (3  Wolff's  Const.  &  Rev.  Laws  1904-08,  p.  773.) 

§  650.     Tax  on  Entire  Succession  to  be  Paid  When  Accepted. 

Sec.  16.  Be  it  further  enacted,  etc.,  Each  inheritance  or  legacy  is  in- 
divisible, and  must  be  accepted  or  renounced  for  the  whole;  and  the  heir  or 
legatee  shall  not  be  entitled  to  be  placed  in  possession  of  the  same,  and  shall 
be  without  right  or  capacity  to  alienate  any  part  thereof,  until  the  tax  on 
the  whole  shall  have  been  fixed  and  paid,  or  until  it  shall  have  been  judicially 
determined,  in  the  manner  herein  provided,  that  no  part  of  the  same  is 
subject  to  the  tax  imposed  by  this  act.  (3  Wolff's  Const.  &  Rev.  Laws  1904-08, 
p.  774.) 

§  651.    Transfer  or  Delivery  of  Stocks,  Deposits  and  Other  Property. 

Sec.  17.  Be  it  further  enacted,  etc.,  No  bank,  banker,  trust  company,  ware- 
houseman, or  other  depositary  and  no  person  or  corporation  or  partnership 
having  on  deposit  or  in  possession  or  control  any  moneys,  credits,  goods  or 
other  things  or  rights  of  value  for  a  person  deceased,  or  in  which  he  had 
any  interest,  and  no  corporation  the  stock  or  registered  bonds  of  which  are 
owned  by  a  person  deceased  shall  deliver  or  transfer  such  moneys,  credits, 
stock,  bonds  or  other  things  or  rights  of  value  to  any  heir  or  legatee  of  such 
deceased  person,  unless  the  tax  due  thereon  under  this  act  shall  have  been 
paid,  or  unless  it  be  judicially  determined  in  the  manner  herein  prescribed 
that  no  tax  is  due  by  such  heir  or  legatee.  Otherwise  the  person  or  cor- 
poration so  making  delivery  or  transfer  shall  be  liable  for  the  said  tax. 


LOUISIANA  STATUTE.  497 

But  the  order  of  a  court  of  competent  jurisdiction,  directing  such  delivery  or 
transfer,  shall  be  full  authority  for  the  same.  (3  Wolff's  Const.  &  Her.  Laws 
1904-08,  p.  774.) 

§  652.    Burden  of  Proof  to  Establish  Exemption. 

Sec.  18.  Be  it  further  enacted,  etc.,  The  burden  of  proving  facts  estab- 
lishing exemption  from  the  tax  imposed  by  this  act  is  upon  the  person  claiming 
exemption.  (3  Wolff's  Const.  &  Rev.  Laws  1904-08,  p.  774.) 

§  653.    Jurisdiction  of  IMstrict  Court. 

Sec.  19.  Be  it  further  enacted,  etc.,  The  district  court  of  the  last  domicile 
of  the  deceased,  and  in  the  parish  of  Orleans  the  civil  district  court,  shall 
have  original  jurisdiction  to  hear  and  determine  all  the  proceedings  provided 
by  this  act.  In  the  case  of  a  nonresident  decedent,  the  district  court,  or 
civil  district  court,  of  any  parish  in  which  he  left  property,  movable  or 
immovable,  shall  exercise  such  jurisdiction,  and  the  court  in  which  such  pro- 
ceedings shall  be  first  begun  shall  have  exclusive  original  jurisdiction  thereof. 
(3  Wolff's  Const.  &  Rev.  Laws  1904-08,  p.  774.) 

§  654.    Curator  Ad  Hoc  to  Represent  Nonresident  and  Unknown  Heirs. 

Sec.  20.  Nonresidents  and  unknown  heirs  and  legatees,  and  those  whose 
whereabouts  are  unknown,  shall  be  represented  by  curator  ad  hoc  appointed 
by  the  court,  and  all  notices,  citations  and  demands  prescribed  by  this  act 
shall  be  served  on  such  officers.  Though  there  be  in  any  case  more  than  one 
unknown  or  absent  heir  or  legatee,  all  may  be  represented  by  the  same  curator. 
(3  Wolff's  Const.  &  Rev.  Laws  1904-08,  p.  775.) 

§  655.    Commissions  of  Tax  Collector  and  Clerk  of  Court. 

Sec.  21.  Be  it  further  enacted,  etc.,  The  tax  collector  spoken  of  and 
intended  by  this  act  is  the  sheriff  and  ex-officio  tax  collector  of  the  parish 
in  which  was  the  last  residence  of  the  decedent,  or  in  which  is  situated  prop- 
erty of  a  nonresident  decedent,  and  in  the  parish  of  Orleans  the  clerk  of 
the  civil  district  court.  They  shall  receive  a  commission  of  two  per  cent  on 
their  collections  of  taxes  under  this  act.  (3  Wolff's  Const.  &  Rev.  Laws  1904- 
08,  p.  775.) 

§  656.    Attorney  to  Assist  Clerk  of  Court — Fees. 

Sec.  22.  Be  it  further  enacted,  etc.,  In  and  for  the  parish  of  Orleans 
the  governor  shall  appoint,  by  and  with  the  advice  and  consent  of  the  senate, 
for  a  term  of  four  years,  an  attorney  at  law,  whose  duty  it  shall  be  to 
advise,  assist  and  represent  the  clerk  of  the  civil  district  court  in  the 
enforcement  of  this  act.  For  his  services,  except  as  provided  in  sections 
12  and  13,  he  shall  receive  a  fee  of  four  per  cent  on  all  taxes  collected  here- 
under,  payable  out  of  the  same  before  transmission  to  the  treasury.  In 
all  other  parishes  of  the  state  the  said  duties  shall  be  performed  by  the 
attorneys  appointed  under  existing  law  to  assist  the  tax  collectors  in  the 
collection  of  delinquent  licenses,  and  the  compensation  of  such  attorneys 
shall  be  as  above  provided.  (3  Wolff's  Const.  &  Rev.  Laws  1904-08,  p.  775.) 

n 


498  INHERITANCE  TAXATION. 

§  657.    Valuation  of  Annuities. 

Sec.  23.  Be  it  further  enacted,  etc.,  In  fixing  the  value  of  any  legacy  or 
donation  mortis  causa  which  consists  in  whole  or  in  part  of  an  annuity 
or  usufruct  or  right  of  use  or  habitation,  the  court  shall  consider  the 
expectancy  of  life  of  the  legatee  or  donee  according  to  the  table  known  as 
the  American  Experience  Table  of  Mortality,  at  six  per  cent  per  annum 
compound  interest.  (3  Wolff's  Const.  &  Eev.  Laws  1904-08,  p.  775.) 

§  658.    Interest  on  Delinquent  Tax. 

Sec.  24.  Be  it  further  enacted,  etc.,  The  taxes  hereby  levied  shall  bear 
interest  at  the  rate  of  two  per  cent  per  month,  beginning  six  months  after 
the  death  of  the  decedent;  saving  to  any  heir,  legatee  or  donee  the  right 
to  stop  the  running  of  interest  against  him  by  paying  the  amount  of  his  tax 
with  accrued  interest,  or  by  tendering  the  same  to  the  tax  collector  in  the 
manner  prescribed  by  the  general  law;  provided,  however,  that  in  cases  in 
which  the  settlement  of  the  succession  is  not  unduly  delayed,  or  in  which 
the  right  of  any  party  to  receive  an  inheritance  or  legacy  is  contested,  and 
in  all  cases  in  which  the  failure  to  pay  tax  on  any  legacy  or  inheritance 
within  the  period  aforesaid  is  not  imputable  to  the  laches  of  the  heir  or 
legatee,  the  court  may,  in  its  discretion,  remit  such  interest.  (3  Wolff's 
Const.  &  Eev.  Laws  1904-08,  p.  776.) 

§  659.     Costs  to  be  Borne  by  Mass  of  Succession. 

Sec.  25.  Be  it  further  enacted,  etc.,  The  costs  of  all  proceedings  under 
this  act  shall  be  borne  by  the  mass  of  the  succession;  provided,  that  in  cases 
in  which  it  seems  to  him  equitable  to  do  so  the  judge  shall  have  the  power 
to  apportion  the  costs  among  the  several  parties,  or  allow  any  party  to 
retain  his  costs  out  of  any  sum  found  to  be  due  by  him  for  tax  hereunder. 
Provided,  the  provisions  of  this  act  shall  affect  all  successions  not  finally 
closed,  or  in  which  the  final  account  has  not  been  filed.  (3  Wolff's  Const. 
&  Eev.  Laws  1904-08,  p.  776.) 


MAINE  STATUTE.  499 

CHAPTER  XXXIV. 

MAINE  STATUTE. 

(Bevised  Statutes  of  1903,  p.  151;  Laws  of  1905,  p.  1S1;  Laws  of  1909, 
p.  185;  Laws  of  1911,  p.  17S.) 

§  660.  Transfers  Subject  to  Tax — Eates — Persons  Liable. 

§  661.  Estates  for  Years  or  for  Life  and  Remainders. 

§  662.  Bequests  to  Executor  in  Lieu  of  Compensation. 

§  663.  Time  for  Payment  of  Tax — Interest — Lien. 

§  664.  Liability  of  Executor. 

§  665.  Collection  of  Tax  by  Executor. 

§  666.  Legacies  Charged  upon  Real  Estate. 

§  667.  Legacies  for  a  Limited  Period. 

§  668.  Sale  of  Property  to  Pay  Tax. 

§  609.  Account  of  Executor  not  Settled  Until  Tax  Paid. 

§  670.  Filing  Copies  of  Inventory. 

§  671.  Executor  to  Inform  Board  of  Assessors  of  the  Transfer. 

§  672.  Refunding  Excess  Payments. 

§  673.  Appraisement  and  Valuation  of  Property. 

§  674.  Jurisdiction  of  Probate  Court  and  Proceedings  Therein. 

§  675.  Fees  of  Judges  or  Registers  of  Probate. 

§  676.  Definitions  of  Terms. 

§  677.  Attorney  General  to  be  Furnished  Lists  of  Estates  and  Investigate 

Same. 

§  678.  Application  by  Attorney  General  for  Appointment  of  Administrator. 

§  679.  Failure  of  Executor  to  File  Inventory. 

§  680.  Property  Subject  to  Tax  in  Another  State  or  Country. 

§  681.  Report  of  Deaths  to  Attorney  General. 

§  682.  Stock  in  Corporations  Organized  in  Two  or  More  States. 

§  683.  Transfers  of  Stocks,  Bonds,  etc.,  not  Subject  to  Tax. 

§  684.  Transfer  of  Stocks,  etc.,  of  Nonresident  Decedent. 

§  685.  Delivery   or    Transfer   of    Assets    of    Nonresident   Without    Payment 

of  Tax. 

§  686.  Proceedings  to  Recover  Tax. 

§  687.  Retrospective  Operation  of  Statute. 

§  688.  Payment  of  Funds  to  State  Treasurer. 

§  660.     Transfers  Subject  to  Tax — Bates — Persons  Liable. 

See.  69.  All  property  within  the  jurisdiction  of  this  state,  and  any  in- 
terest therein,  whether  belonging  to  inhabitants  of  this  state  or  not,  and 
whether  tangible  or  intangible,  which  shall  pass  by  will,  by  the  intestate 
laws  of  this  state,  by  allowance  of  a  judge  of  probate  to  a  widow  or  child 
by  deed,  grant,  sale  or  gift,  except  in  cases  of  a  bona  fide  purchase  for 
full  consideration  in  money  or  money's  worth,  and  except  as  herein  other- 
wise provided,  made  or  intended  to  take  effect  in  possession  or  enjoyment 


500  INHERITANCE  TAXATION. 

after  the  death  of  the  grantor,  to  any  person  in  trust  or  otherwise,  except 
to  or  for  the  use  of  any  educational,  charitable,  religious  or  benevolent  in- 
stitution in  this  state,  the  property  of  which  is  by  law  exempt  from  taxation, 
shall  be  subject  to  an  inheritance  tax  for  the  use  of  the  state  as  hereinafter 
provided.  Property  which  shall  so  pass  to  or  for  the  use  of  (class  A)  the 
husband,  wife,  lineal  ancestor,  lineal  descendant,  adopted  child,  the  adoptiv* 
parent,  the  wife  or  widow  of  a  son,  or  the  husband  of  a  daughter  of  a 
decedent,  shall  be  subject  to  a  tax  upon  the  value  of  each  bequest,  devise 
or  distributive  share,  in  excess  of  the  exemption  hereinafter  provided,  of 
one  per  cent  if  such  value  does  not  exceed  fifty  thousand  dollars,  one  and 
one-half  per  cent  if  such  value  exceeds  fifty  thousand  dollars  and  does  not 
exceed  one  hundred  thousand  dollars,  and  two  per  cent  if  such  value  exceeds 
one  hundred  thousand  dollars;  the  value  exempt  from  taxation  to  or  for 
the  use  of  a  husband,  wife,  father,  mother,  child,  adopted  child  or  adoptive 
parent  shall  in  each  case  be  ten  thousand  dollars,  and  the  value  exempt  from 
taxation  to  or  for  the  use  of  any  other  member  of  (class  A)  shall  in  each 
case  be  five  hundred  dollars.  Property  which  shall  so  pass  to  or  for  the 
use  of  (class  B)  a  brother,  sister,  uncle,  aunt,  nephew,  niece  or  cousin  of 
decedent,  shall  be  subject  to  a  tax  upon  the  value  of  each  bequest,  devise 
or  distributive  share  in  excess  of  five  hundred  dollars,  and  the  tax  of  this 
class  shall  be  four  per  cent  of  its  value  for  the  use  of  the  state  if  such 
value  does  not  exceed  fifty  thousand  dollars,  four  and  one-half  per  cent  if 
its  value  exceeds  fifty  thousand  dollars  and  does  not  exceed  one  hundred 
thousand  dollars  and  five  per  cent  if  its  value  exceeds  one  hundred  thousand 
dollars.  Property  which  shall  pass  to  or  for  the  use  of  any  others  than 
members  of  class  A,  class  B  and  the  institutions  excepted  in  the  first  sentence 
of  this  section,  shall  be  subject  to  a  tax  upon  the  value  of  each  bequest, 
devise  or  distributive  share  in  excess  of  five  hundred  dollars,  and  the  tax 
of  this  class  shall  be  five  per  cent  of  its  value  for  the  use  of  the  state  if 
such  value  does  not  exceed  fifty  thousand  dollars,  six  per  cent  if  its  value 
exceeds  fifty  thousand  and  does  not  exceed  one  hundred  thousand  dollars 
and  seven  per  cent  if  its  value  exceeds  one  hundred  thousand  dollars.  Admin- 
istrators," executors  and  trustees,  and  any  grantees  under  such  conveyances 
made  during  the  grantor's  life  shall  be  liable  for  such  taxes,  with  interest, 
until  the  same  have  been  paid.  (Eev.  Stats.  1903,  p.  151;  Laws  1909, 
p.  184;  Laws  1911,  p.  173,  approved  March  30,  1911.) 

§  661.    Estates  for  Years  or  for  Life  and  Remainders. 

Sec.  70.  Whenever  property  shall  descend  by  devise,  descent,  bequest  or 
grant  to  a  person  for  life  or  for  a  term  of  years  and  the  remainder  to 
another,  except  to  or  for  the  use  of  any  educational,  charitable,  religious 
or  benevolent  institution  in  this  state,  the  value  of  the  prior  estate  shall  be 
determined  by  the  Actuaries'  Compound  Experience  Tables  at  four  per  cent 
compound  interest  and  a  tax  imposed  at  the  rate  prescribed  in  the  preceding 
section  for  the  class  to  which  the  devisee,  legatee  or  grantee  of  such  estate 
belongs  and  a  tax  shall  be  imposed  at  the  same  time  upon  the  remaining 
value  of  such  property  at  the  rate  prescribed  in  said  section  for  the  class 
to  which  the  devisee,  legatee  or  grantee  of  such  remainder  belongs,  subject 


MAINE  STATUTE.  501 

to  the  exemptions  provided  in  the  preceding  section.     (Bev.  Stats.   1903,  p. 
151;  Laws  1909,  p.  185,  approved  April  1,  1909.) 

§  662.    Bequests  to  Executor  in  Lieu  of  Compensation. 

Sec.  71.  Whenever  a  decedent  appoints  one  or  more  executors  or  trustees, 
and  in  lieu  of  their  allowance  makes  a  bequest  or  devise  of  property  to  them 
which  would  otherwise  be  liable  to  said  tax,  or  appoints  them  his  residuary 
legatees,  and  said  bequests,  devises,  or  residuary  legacies  exceed  a  reason- 
able compensation  for  their  services,  such  excess  shall  be  liable  to  such  tax, 
and  the  court  of  probate  having  jurisdiction  of  their  accounts  shall  determine 
the  amount  of  such  reasonable  compensation.  (Laws  1903,  p.  151.) 

§  663.    Time  for  Payment  of  Tax — Interest — Lien. 

Sec.  72.  All  taxes  imposed  by  section  sixty-nine  upon  the  estates  of  de- 
ceased residents  of  this  state  shall  be  payable  to  the  treasurer  of  state  and 
all  taxes  imposed  by  said  section  sixty-nine  upon  the  estates  of  nonresident 
decedents  to  the  attorney  general  by  the  executors,  administrators  or  trustees 
at  the  expiration  of  two  years  after  the  granting  of  letters  testamentary  or 
of  administration;  but  if  legacies  or  distributive  shares  are  paid  within  two 
years,  the  tax  thereon  shall  be  payable  at  the  same  time;  and  if  the  same 
are  not  so  paid,  interest  at  the  rate  of  six  per  cent  a  year  shall  be  charged 
and  collected  from  the  time  the  same  became  payable;  but  no  such  tax  upon 
estates  of  residents  or  inhabitants  of  this  state  shall  be  accepted  except 
upon  presentation  of  a  certificate  from  a  probate  court  showing  the  amount 
of  such  tax  due.  It  shall  be  the  duty  of  the  personal  representative  of  said 
deceased  to  petition  the  probate  court  having  jurisdiction  to  assess  such 
taxes  before  the  payment  of  any  such  legacies  or  distributive  shares,  and 
before  the  expiration  of  two  years  after  the  granting  of  letters  aforesaid. 
The  register  of  probate  shall  send  by  registered  mail,  a  copy  of  such  petition 
to  the  attorney  general  at  least  seven  days  before  the  hearing  thereon  unless 
the  attorney  general  in  writing  waives  the  same. 

If  no  such  petition  is  filed  within  the  time  limited,  the  attorney  general 
may  file  a  similar  petition,  of  which,  unless  notice  is  waived,  at  least  fourteen 
days'  notice  shall  be  given  such  personal  representative  or  his  agent.  In 
either  case  the  attorney  general  may  appear  and  be  heard  upon  the  assessment 
of  such  tax  and  an  appeal  may  be  had  from  the  decree  of  the  judge  of 
probate  by  either  party.  Eeal  estate  of  which  the  decedent  died  seised  or 
possessed,  subject  to  taxes  as  aforesaid  shall  be  charged  with  a  lien  for  all 
such  taxes  and  interest,  which  lien  may  be  discharged  by  the  payment  of 
all  taxes  due  and  to  become  due  upon  said  real  estate  or  separate  parcel 
thereof,  or  by  an  order  or  decree  of  the  probate  court  discharging  said  lien, 
said  order  or  decree  to  be  granted  by  the  probate  court  upon  the  deposit 
with  said  court  of  a  sum  of  money  or  a  bond,  sufficient  to  secure  to  the  state 
the  payment  of  any  tax  due  or  to  become  due  on  said  real  estate.  Orders 
or  decrees  discharging  such  lien  may  be  recorded  in  the  registry  of  deeds  in 
the  county  where  said  real  estate  is  located.  (Rev.  Stats.  1903,  p.  152;  Laws 
1909,  p.  186;  Laws  1911,  p.  175,  approved  March  30,  1911.), 


502  INHERITANCE  TAXATION. 

§  664.    Liability  of  Executor. 

Sec.  73.  After  failure  to  pay  such  tar,  as  provided  in  tho  preceding  sec- 
tion, such  an  administrator,  executor  or  trustee  is  liable  to  the  state  on  his 
administration  bond  for  such  tax  and  interest,  and  an  action  shall  lie 
thereon  without  the  authority  of  the  judge  of  probate;  or  an  action  of  debt 
may  be  maintained  in  the  name  of  the  state  against  any  such  administrator, 
executor  or  trustee,  or  any  such  grantee,  for  such  tax  and  interest.  But  if 
such  administrator,  executor  or  trustee,  after  being  duly  cited  therefor, 
refuses  or  neglects  to  -return  his  inventory  or  to  settle  an  account,  by 
reason  whereof  the  judge  of  probate  cannot  determine  the  amount  of  such 
tax,  such  administrator,  executor  or  trustee  shall  be  liable  to  the  state  on 
his  administration  bond  for  all  damages  occasioned  thereby.  (Eev.  Stats. 
1903,  p.  152.) 

§  665.    Collection  of  Tax  by  Executor. 

Sec.  74.  Any  administrator,  executor  or  trustee,  having  in  charge  or  trust 
any  property  subject  to  such  tax,  shall  deduct  the  tax  therefrom,  or  shall 
collect  the  tax  thereon,  and  interest  chargeable  under  section  seventy-two 
from  the  legatee  or  person  entitled  to  said  property,  and  he  shall  not  deliver 
any  specific  legacy  or  property  subject  to  said  tax  to  any  person  until 
he  has  collected  the  tax  thereon.  (Eev.  Stats.  1903,  p.  152.) 

§  666.    Legacies  Charged  upon  Real  Estate. 

Sec.  75.  Whenever  any  legacies  subject  to  said  tax  shall  be  charged 
upon  or  payable  out  of  any  real  estate,  the  heir  or  devisee,  before  paying 
the  same,  shall  deduct  said  tax  therefrom  and  pay  it  to  the  executor,  admin- 
istrator or  trustee,  and  the  same  shall  remain  a  charge  upon  said  real  estate 
until  it  is  paid;  and  payment  thereof  shall  be  enforced  by  the  executor, 
administrator  or  trustee,  in  the  same  manner  as  the  payment  of  the  legacy 
itself  could  be  enforced.  (Eev.  Stats.  1903,  p.  152.) 

§'  667.    Legacies  for  a  Limited  Period. 

Sec.  76.  If  any  such  legacy  be  given  in  money  to  any  person  for  a  lim- 
ited period,  such  administrator,  executor  or  trustee  shall  retain  the  tax  on 
the  whole  amount;  but  if  it  be  not  in  money,  he  shall  make  an  application 
to  the  judge  of  probate  having  jurisdiction  of  his  accounts-  to  make  an 
apportionment,  if  the  case  requires  it,  of  the  sum  to  be  paid  into  his  hands 
by  such  legatee  on  account  of  said  tax  and  for  such  further  order  as  the 
case  may  require.  (Rev.  Stats.  1903,  p.  152.) 

§  668.     Sale  of  Property  to  Pay  Tax. 

See.  77.  All  administrators,  executors  and  trustees  shall  have  power  to 
sell  so  much  of  the  estate  of  the  deceased  as  will  enable  them  to  pay  said 
tax  in  the  same  manner  as  they  may  be  empowered  to  do  for  the  payment 
of  his  debts,  (Eev.  Stats,  1903,  p.  152.) 

§  669.    Account  of  Executor  not  Settled  Until  Tax  Paid. 

Sec.  78.  No  final  settlement  of  the  account  of  any  executor,  adminis- 
trator or  trustee  shall  be  accepted  or  allowed  by  any  judge  of  probate  unless 


MAINE  STATUTE.  503 

it  shall  show,  on  oath  or  affirmation  of  the  accountant,  and  the  judge  of  said 
court  shall  fir^d,  that  all  taxes,  imposed  by  the  provisions  of  section  sixty- 
nine,  upon  any  property  or  interest  therein  belonging  to  the  estate  to  be 
settled  by  said  account,  shall  have  been  paid,  and  the  receipt  of  the  treas- 
urer of  state  for  such  tax  shall  be  the  proper  voucher  for  such  payment. 
(Eev.  Stats.  1903,  p.  152.) 

§  670.    Filing  Copies  of  Inventory. 

See.  79.  A  copy  of  the  inventory  of  every  estate,  any  part  of  which 
may  be  subject  to  a  tax  under  the  provisions  of  section  sixty-nine,  or  if 
the  same  can  be  conveniently  separated,  then  a  copy  of  such  part  of  such 
inventory  with  the  appraisal  thereof,  shall  be  sent  by  mail  by  th«  register 
or  the  judge  of  the  court  of  probate  in  which  such  inventory  is  filed  to  the 
attorney  general  within  ten  days  after  the  same  is  filed.  The  fees  for  such 
copy  shall  be  paid  by  the  executor,  administrator  or  trustee,  and  allowed  in 
his  account.  (Rev.  Stats.  1903,  p.  153;  Laws  1909,  p.  187,  approved  April 
1,  1909.) 

§  671.     Executor  to  Inform  Board  of  Assessors  of  the  Transfer. 

Sec.  80.  Whenever  any  of  the  real  estate  of  a  decedent  shall  so  pass  to 
another  person  as  to  become  subject  to  said  tax,  the  executor,  administrator 
or  trustee  of  the  decedent  shall  inform  the  board  of  state  assessors  thereof 
within  six  months  after  he  has  assumed  the  duties  of  his  trust,  or  if  the 
fact  is  not  known  to  him  within  that  time,  then  within  one  month  after  it 
does  become  known  to  him.  (Kev.  Stats.  1903,  p.  153.) 

§  672.    Refunding  Excess  Payments. 

Sec.  81.  Whenever  for  any  reason  the  devisee,  legatee  or  heir  who  has 
paid  any  such  tax  shall  refund  any  portion  of  the  property  on  which  it 
was  paid,  or  it  shall  be  judicially  determined  that  the  whole  or  any  part  of 
such  tax  ought  not  to  have  been  paid,  said  tax,  or  the  due  proportional  part 
of  said  tax,  shall  be  paid  back  to  him  by  the  executor,  administrator  or 
trustee.  (Rev.  Stats.  1903,  p.  153.) 

§  673.    Appraisement  and  Valuation  of  Property. 

Sec.  82.  The  value  of  such  property  as  may  be  subject  to  said  tax  shall 
be  its  actual  market  value  as  found  by  the  judge  of  probate,  after  public 
notice  or  personal  notice  to  the  board  of  state  assessors  and  all  persons  inter- 
ested in  the  succession  to  said  property,  or  the  board  of  state  assessors  or 
any  of  said  persons  interested  may  apply  to  the  judge  of  probate  having 
jurisdiction  of  the  estate  and  on  such  application  th«  judge  shall  appoint 
three  disinterested  persons,  who,  being  first  sworn,  shall  view  and  appraise 
such  property  at  its  actual  market  value  for  the  purposes  of  said  tax,  and 
shall  make  return  thereof  to  said  probate  court,  which  return  may  be 
accepted  by  said  court  in  the  same  manner  as  the  original  inventory  of  such 
estate  is  accepted,  and  if  so  accepted  it  shall  be  binding  upon  the  person 
by  whom  such  tax  is  to  be  paid,  and  upon  the  state.  And  the  fees  of  the 
appraisers  shall  be  fixed  by  the  judge  of  probate  and  paid  by  the  executor, 


504  INHERITANCE  TAXATION. 

administrator  or  trustee.     (Rev.  Stats.  1903,  p.  153;  Laws  1909,  p.  187,  ap- 
proved April  1,  1909.) 

§  674.    Jurisdiction  of  Probate  Court  and  Proceedings  Therein. 

Sec.  83.  The  court  of  probate,  having  either  principal  or  ancillary  juris- 
diction of  the  settlement  of  the  estate  of  the  decedent,  shall  have  jurisdiction 
to  hear  and  determine  all  questions  in  relation  to  said  tax  that  may  arise 
affecting  any  devise,  legacy  or  inheritance  under  this  chapter,  subject  to 
appeal  as  in  other  cases,  and  the  attorney  general  shall  represent  the  inter- 
ests of  tho  state  in  any  such  proceedings.  The  judge  of  probate,  having 
jurisdiction  as  aforesaid,  shall  fix  the  time  and  place  for  hearing  and  de- 
termining such  questions  and  shall  give  public  notice  thereof  and  personal 
notice  to  the  executor,  administrator  or  trustee.  Appeals  in  behalf  of  the 
estate  shall  be  taken  in  the  nam«  of  the  executor,  administrator  or  trustee 
and  service  upon  the  attorney  general  shall  be  sufficient.  When  appeals 
are  taken  by  the  state,  service  shall  be  made  upon  the  executor,  adminis- 
trator or  trustee.  (Rev.  Stats.  1903,  p.  153;  Laws  1909,  p.  187,  approved 
April  1,  1909.) 

§  675.    Fees  of  Judges  or  Registers  of  Probate. 

Sec.  84.  The  fees  of  judges  or  registers  of  probate  for  the  duties  re- 
quired of  them  by  the  fifteen  preceding  sections  shall  be,  for  each  order, 
appointment,  decree,  judgment,  or  approval  of  appraisal  or  report  required 
hereunder,  fifty  cents,  and  for  copies  of  records,  the  fees  that  are  now 
allowed  by  law  for  the  same.  And  the  administrators,  executors,  trustees 
or  other  persons  paying  said  tax  shall  be  entitled  to  deduct  the  amount  of 
all  such  fees  paid  to  the  judge  or  register  of  probate  from  the  amount  of 
said  tax  to  b«  paid  to  the  treasurer  of  state.  (Rev.  Stats.  1903,  p.  153.) 

§  676.     Definitions  of  Terms. 

Sec.  85.  In  the  foregoing  sections  relating  to  inheritances,  the  word  "per- 
son" shall  be  construed  to  include  bodies  corporate  as  well  as  natural 
persons;  the  word  "property"  shall  be  construed  to  include  both  real  and 
personal  estate,  and  any  form  of  interest  therein  whatsoever,  including  an- 
nuities. (Rev.  Stata.  1903,  p.  154;  Laws  1909,  p.  188,  approved  April  1, 
1909.) 

§  677.  Attorney  General  to  be  Furnished  Lists  of  Estates  and  Investigate 
Same. 

Sec,  86.  The  registers  of  probate  in.  the  several  counties  shall  deliver 
to  the  attorney  general,  on  or  before  the  first  day  of  June  in  each  year,  a 
list  of  all  estates  in  which  it  appears  from  the  record  that  some  part  of 
said  estate  may  be  liable  to  an  inheritance  tax,  and  in  which  a  will  has 
been  offered  for  probate  or  administration  granted  for  more  than  one  year 
prior  to  the  tim«  of  filing  such  list,  and  in  which  no  inheritance  tax  has 
been  assessed  or  paid. 

Said  list  shall  contain  the  name  of  the  deceased,  the  date  of  the  admin- 
istration granted,  and  the  name  and  residence  of  the  administrator  or 
executor. 


MAINE  STATUTE.  505 

The  attorney  general  shall  promptly  investigate  all  cases  so  reported,  by 
notifying  the  executor,  administrator,  trustee,  heir  or  devisee,  and  in  such 
other  manner  as  he  may  determine,  and  if  it  appears  to  him  that  in  any 
such  case  an  inheritance  tax  is  due  to  the  state  and  has  not  been  paid  to 
the  state,  he  shall,  unless  said  tax  is  paid  to  the  state,  within  thirty  days 
after  notice  from  him  to  the  executor,  administrator,  trustee,  heir  or  dev- 
isee that  the  same  is  due,  cite  the  executor,  administrator,  trustee,  heir  or 
devisee,  whose  duty  it  is  to  pay  said  tax,  before  the  proper  probate  court  in 
such  manner  as  is  provided  for  the  citation  of  trust  officers  in  probate  pro- 
ceedings, and  shall  take  all  other  action  necessary  to  secure  the  payment 
of  said  tax. 

In  such  proceedings  the  attorney  general  shall  recover  costs  to  be  fixed 
and  determined  by  the  judge  of  probate  in  his  discretion,  which  costs  may 
be  retained  by  said  attorney  general  for  his  own  use  and  shall  be  additional 
to  any  salary  allowed  to  him  by  law.  (Rev.  Stats.  1905,  p.  131;  Laws  1909, 
p.  185,  approved  April  1,  1909.) 

§  678.  Application  by  Attorney  General  for  Appointment  of  Administrator. 
Sec.  87.  If,  upon  the  decease  of  a  person  leaving  an  estate  liable  to  pay 
an  inheritance  tax,  a  will  disposing  of  such  estate  is  not  offered  for  probate, 
or  an  application  for  administration  made  within  six  months  after  such 
decease,  the  proper  probate  court,  upon  application  by  the  attorney  general, 
shall  appoint  an  administrator  for  such  estate,  and  it  shall  be  the  duty  of 
the  attorney  general,  when  such  case  is  brought  to  his  attention  to  petition 
for  administration  on  such  estate,  and  the  judge  in  his  discretion  may  ap- 
point such  attorney  general  or  other  suitable  person  as  such  administrator, 
and  said  attorney  general  shall  be  entitled  to  costs  as  in  other  probate  pro- 
ceedings. (Rev.  Stats.  1905,  p.  132;  Laws  1909,  p.  186,  approved  April  1, 
1909.) 

§  679.    Failure   of   Executor   to   File   Inventory. 

Sec.  88.  If  any  executor,  administrator  or  trustee  neglects  or  refuses  to 
file  an.  inventory  of  the  estate  under  his  charge  within  three  months  from 
the  date  of  the  warrant  of  appraisal,  unless  such  time  be  extended  by  the 
judge  of  probate,  he  shall  be  cited  to-  file  such  inventory  by  the  judge  of 
probate  and  if  he  neglects  or  refuses  to  file  such  inventory  within  sixty 
days  thereafter  he  shall  be  liable  to  a  penalty  of  not  more  than  five  hundred 
dollars  which  shall  be  recovered  in  an  action  of  debt  by  the  attorney 
general  for  the  use  of  the  state  and  the  register  of  probate  shall  notify  the 
attorney  general  of  the  failure  of  any  executor,  administrator  or  trustee  to 
file  an  inventory  as  above  provided.  (Rev.  Stats.  1909,  p.  188;  Laws  1911, 
p.  176,  approved  March  30,  1911.) 

§  680.    Property  Subject  to  Tax  in  Another  State  or  Country. 

Sec.  89.  Property  belonging  to  a  deceased  resident  of  this  state  which 
shall  be  distributed  by  order  of  the  probate  court  subsequent  to  the  passage 
of  this  act,  and  which  is  not  therein  at  the  time  of  his  death  shall  not  be 
taxable  under  the  provisions  of  this  chapter  if  legally  subject  in  another 
state  or  country  to  a  tax  of  like  character  and  amount  to  that  imposed  by 


506  INHERITANCE   TAXATION. 

section  sixty-nine  and  if  such  tax  be  actually  paid  or  guaranteed  or  secured 
in  accordance  with  the  laws  of  such  other  state  or  country;  if  legally  sub- 
ject in  another  state  or  country  to  a  tax  of  like  character,  but  of  less  amount 
than  that  imposed  by  section  sixty-nine  and  such  tax  be  actually  paid, 
guaranteed  or  secured  aa  aforesaid,  such  property  shall  be  taxable  under  the 
provisions  of  section  sixty-nine  to  the  extent  of  the  difference  between'  the 
tax  thus  actually  paid,  guaranteed  or  secured  and  the  amount  for  which 
such  property  would  otherwise  be  liable  under  this  chapter.  Property  of 
nonresident  decedent  which  is  within  the  jurisdiction  of  the  state  at  the 
time  of  his  death  if  subject  to  a  tax  by  the  law  of  the  state  or  country  of 
his  residence,  of  like  character  with  that  imposed  by  this  chapter,  shall  be 
subject  only  to  such  portion  of  the  tax  imposed  hereunder  as  may  be  in 
excess  of  such  tax  imposed  by  the  laws  of  such  state  or  country.  (Rev. 
Stats.  1909,  p.  188,  approved  April  1,  1909.) 

§  681.    Report  of  Deaths  to  Attorney  General. 

Sec.  90.  Clerks  of  cities  and  towns  shall  report  to  the  attorney  general 
the  names  of  all  persons  dying  within  their  respective  municipalities  who  in 
the  judgment  of  said  clerks  leave  estates  the  value  whereof  exceeds  five 
hundred  dollars,  together  with  the  names  of  husband,  wife  and  next  of  kin 
so  far  as  known  to  him;  such  report  shall  be  mailed  to  the  attorney  general 
within  ten  days  of  the  time  when  the  certificate  of  death  is  filed  with  such 
clerk,  and  a  fee  of  twenty-five  cents  shall  be  paid  said  clerk  by  the  state 
therefor.  The  attorney  general  shall  prepare  and  furnish  blanks  for  such 
returns.  (Rev.  Stats.  1911,  p.  176.) 

§  682.     Stock  in  Corporations  Organized  in  Two  or  More  States. 

Sec.  91.  Wlhen  the  personal  estate  passing  from  any  person,  not  an  in- 
habitant or  resident  of  this  state,  as  provided  in  section  sixty-nine  of 
chapter  eight  of  the  Revised  Statutes,  shall  consist  in  whole  or  in  part  of  shares 
of  any  railroad,  or  street  railway  company  or  telegraph  or  telephone  company 
incorporated  under  the  laws  of  this  state  and  also  of  some  other  state  or 
country,  so  much  only  of  each  share  as  is  proportional  to  the  part  of  such 
company's  lines  lying  within  this  state  shall  be  considered  as  property  of 
such  person  within  the  jurisdiction  of  this  state  for  the  purposes  of  this 
chapter.  (Rev.  Stats.  1911,  p.  176,  approved  March  30,  1911.) 

§  683.     Transfers  of  Stocks,  Bonds,  etc.,  not  Subject  to  Tax. 

Sec.  92.  WLen  the  personal  estate  passing  from  any  deceased  person  not 
an  inhabitant  or  resident  of  this  state,  as  provided  in  section  sixty-nine, 
shall  consist  of  the  stocks,  bonds  or  other  debt  or  certificate  of  indebtedness 
of  any  corporation  organized  under  the  laws  of  Maine,  no  collateral  inheri- 
tance tax  shall  be  assessed  upon  the  same  unless  said  corporation  shall  at 
the  time  of  such  decease  have  tangible  property  within  the  state  exceeding 
one  thousand  dollars  in  value.  The  attorney  general  upon  satisfactory  evi- 
dence and  payment  of  a  fee  of  five  dollars  to  the  use  of  the  state  shall 
file  a  certificate  in  the  office  of  the  secretary  of  state  that  any  such  cor- 
poration has  not  tangible  property  within  the  state  exceeding  one  thousand 
dollars  in  value.  Such  certificate  may  at  any  time  after  notice  and  upon 


MAINE  STATUTE.  507 

satisfactory  evidence,  be  revoked.  A  copy  of  the  certificate  of  revocation 
shall  be  sent  to  the  clerk,  and  to  any  stock  registrar  or  transfer  agent  whose 
name  is  on  file  with  said  secretary.  Until  the  receipt  of  such  certificate  of 
revocation  any  such  stock  registrar  or  transfer  agent  may  lawfully  transfer 
the  stock  of  said  corporation  and  perform  all  other  duties  incident  to  hi? 
office.  (Rev.  Stats.  1911,  p.  177,  approved  March  30,  1911.) 

§  684.    Transfer  of  Stocks,  etc.,  of  Nonresident  Decedent. 

Sec.  93.  Subject  to  the  provisions  of  section  ninety-two  if  a  foreign 
executor,  administrator  or  trustee  assigns  or  transfers  any  stock  in  any 
national  bank  located  in  this  state  or  in  any  corporation  organized  under 
the  laws  of  this  state,  owned  by  a  deceased  nonresident  at  the  date  of  his 
death  and  liable  to  a  tax  under  the  provisions  of  this  chapter,  the  tax  shall 
be  paid  to  the  attorney  general  at  the  time  of  such  assignment  or  transfer; 
and  if  it  is  not  paid  when  due,  such  executor,  administrator  or  trustee  shall 
be  personally  liable  therefor  until  it  is  paid.  Subject  to  the  provisions  of 
section  ninety-two  a  bank  located  in  this  state  or  a  corporaton  organized 
under  the  laws  of  this  state  which  shall  record  a  transfer  of  any  share  *  of 
its  stock  made  by  a  foreign  executor,  administrator  or  trustee,  or  issue  a 
new  certificate  fdr  a  share  of  its  stock  at  the  instance  of  a  foreign  executor, 
administrator  or  trustee  before  all  taxes  imposed  thereon  by  the  provisions 
of  this  chapter  have  been  paid,  shall  be  liable  for  such  tax  in  an  action  of 
debt  brought  by  the  attorney  general.  (Eev.  Stats.  1911,  p.  177,  approved 
March  30,  1911.) 

g  685.    Delivery  or  Transfer  of  Assets  of  Nonresident  Without  Payment  of 

Tax. 

Sec.  94.  Subject  to  the  provisions  of  section  ninety-two  no  person  or 
corporation  shall  deliver  or  transfer  any  securities  or  assets  belonging  to  the 
estate  of  a  nonresident  decedent  to  anyone  unless  authority  to  receive  the 
same  shall  have  been  given,  by  a  probate  court  of  this  state,  and  upon  satis- 
factory evidence  that  all  inheritance  taxes  provided  for  by  this  chapter 
fcave  been  paid,  guaranteed  or  secured  as  hereinbefore  provided.  Any  person 
or  corporation  that  delivers  or  transfers  any  securities  or  assets  in  violation 
of  the  provisions  of  this  section  shall  be  liable  for  such  tax  in  an  action  of 
debt  brought  by  the  attorney  general.  (Kev.  Stats.  1911,  p.  177,  approved 
March  30,  1911.) 

§  686.    Proceedings  to  Recover  Tax. 

Sec.  95.  The  attorney  general  shall  promptly  commence  proceedings  for  the 
recovery  of  any  of  said  taxes  within  six  months  after  the  same  became 
payable;  and  shall  commence  the  same  when  the  judge  of  a  probate  court 
certifies  to  him  that  the  final  account  of  an  executor,  administrator  or 
trustee  has  been  filed  in  such  court,  and  that  the  settlement  of  the  estate 
is  delayed  because  of  the  nonpayment  of  said  tax.  The  judge  of  the  probate 
court  shall  so  certify  upon  the  application  of  any  heir,  legatee  or  other 
person  interested  therein,  and  may  extend  the  time  of  payment  of  said  tax 
whenever  the  circumstances  of  the  case  require.  (Rev.  Stata.  1911,  p.  178, 
approved  Mar&h  30,  1911.) 


508  INHERITANCE  TAXATION. 

§  687.     Retrospective  Operation  of  Statute. 

Sec.  96.  This  act  shall  not  apply  to  estates  of  persona  deceased  prior  to 
the  date  of  taking  effect  of  the  same,  nor  to  property  passing  by  deed, 
grant,  sale  or  gift  made  prior  to  said  date,  but  said  estates  and  property 
shall  remain  subject  to  the  provisions  of  law  in  force  prior  to  the  taking 
effect  of  this  act.  (Rev.  Stats.  1911,  p.  178,  approved  March  30,  1911.) 

§  688.    Payment  of  Funds  to  State  Treasurer. 

Sec.  97.  All  moneys  received  by  the  attorney  general  as  taxes  collected 
under  the  provisions  of  this  chapter  shall  be  by  him  forthwith  paid  to  the 
state  treasurer.  (Rev.  Stats.  1911,  p.  178,  approved  March  30,  1911.) 


MARYLAND  STATUTE.  509, 

CHAPTER  XXXV. 
MARYLAND  STATUTE. 

(2  General  Laws  of  1904,  pp.  1835-1842;  Laws  of  1908,  pp.  S38,  S39.) 

§  689.  Transfers  Subject  to  Tax — Rates — Exemptions. 

§  690.  Payment  of  Tax  by  Executor. 

§  691.  Valuation  of  Personalty — Sale  of  Property  to  Pay  Tar. 

§  692.  Failure  of  Executor  to  Pay  Tax  Within  Thirteen.  Months. 

§  693.  Appointment  of  Appraisers  of  Real  Estate. 

§  694.  Warrant  to  Appraisers  of  Real  Estate. 

§  695.  Appraisement  of  Property  Lying  in  More  Than  One  County. 

§  696.  Inventory  of  Real  Estate. 

§  697.  Death  or  Refusal  of  Appraiser  to  Act. 

§  698.  Return  of  Inventory  of  Real  Estate. 

§  699.  Appraisement  Deemed  to  be  True  Value  of  Real  Estate. 

§  700.  Lien  of  Tax. 

§  701.  Collection  of  Tax — Sale  of  Real  Estate. 

§  702.  Estates  for  Life  or  for  Years  and  Remainders. 

§  703.  Determination  of  Value  of  Estate  Less  Than  Absolute  Interest. 

§  704.  Sale  of  Property  to  Pay  Tax. 

§  705.  Liability  of  Executor  on  Bond. 

§  706.  Revocation  of  Executor's  Letters  for  Failure  to  Perform  Duties. 

§  707.  Powers  and  Duties  of  Administrator  De  Bonis  Non. 

§  708.  Proceedings  Where  No  Administration  Taken  Out. 

§  709.  Failure  of  Persons  Entitled  to  Take  Out  Administration. 

§  710.  Application  for  Letters — Inquiry  as  to  Real  Estate. 

§  711.  Receipts  for  Payment  of  Tax. 

§  712..  Payment    to    Treasurer — Commissions    of    Clerks   and    Registers    of 

Wills. 

§  713.  Failure  of  Clerks  or  Registers  to  Account. 

§  689.     Transfers  Subject  to  Tax — Bates — Exemptions. 

Sec.  117.  All  estates,  real,  personal  and  mixed,  money,  public  and  private 
securities  for  money  of  svery  kind  passing  from  any  person  who  may  die 
seised  and  possessed  thereof,  being  in  this  state,  or  any  part  of  such  estate 
or  estates,  money  or  securities,  or  interest  therein,  transferred  by  deed,  will, 
grant,  bargain,  gift  or  sale,  made  or  intended  to  take  effect  in  possession 
after  the  death  of  the  grantor,  bargainer,  devisor  or  donor,  to  any  person 
or  persons,  bodies  politic  or  corporate,  in  trust  or  otherwise,  other  than  to 
or  for  the  use  of  the  father,  mother,  husband,  wife,  children  and  lineal 
descendants  of  the  grantor,  bargainer  or  testator,  donor  or  intestate,  shall 
be  subject  to  a  tax  of  five  per  centum  in  every  hundred  dollars  of  the  clear 
value  of  such  estate,  money  or  securities;  and  all  executors  and  administra- 
tors shall  only  be  discharged  from  liability  for  the  amount  of  such  tax,  the 
payment  of  which  they  be  charged  with,  by  paying  the  same  for  the  use  of 
this  state,  as  hereinafter  directed;  provided,  that  no  estate  which  may  be 


510  INHERITANCE  TAXATION. 

valued  at  a  leas  sum  than  five  hundred  dollars  shall  be  subject  to  the  tax 
imposed  by  this  section.  (2  Pub.  Gen.  Laws  1904,  p.  1S35;  Laws  1908, 
p.  238.) 

§  690.    Payment  of  Tax  by  Executor. 

Sec.  118.  Every  executor  or  administrator,  to  whom  administration  may 
be  granted,  before  he  pays  any  legacy,  or  distributes  the  shares  of  any  estate 
liable  to  the  tax  imposed  by  the  preceding  section,  shall  pay  to  the  register 
of  wills  of  the  proper  county  or  city,  two  and  a  half  per  centum  of  every 
hundred  dollars  he  may  hold  for  distribution  among  the  distributees  or  lega- 
tees, and  at  that  rate  for  any  less  sum,  for  the  use  of  the  state;  this  section 
shall  not  be  construed  so  as  to  release  any  tax  already  fixed  on  any  collateral 
inheritance,  distributive  share  or  legacy.  (2  Pub.  Gen.  Laws  1904,  p.  1835.) 

§  691.    Valuation  of  Personalty — Sale  of  Property  to  Pay  Tax. 

Sec.  119.  When  any  species  of  property  other  than  money  or  real  estate 
shall  be  subject  to  said  tax,  the  tax  shall  be  paid  on  the  appraised  value 
thereof  as  filed  in  the  office  of  the  register  of  wills  of  the  proper  county  or 
cityj  and  every  executor  shall  have  power,  under  the  order  of  the  orphans 
court,  to  sell,  if  necessary,  so  much  of  said  property  as  will  enable  him  to 
pay  said  tax.  (2  Pub.  Gen.  Laws  1904,  p.  1836.) 

§  692.    Failure  of  Executor  to  Pay  Tax  Within  Thirteen  Months. 

Sec.  120.  Every  executor  or  administrator  shall,  within  thirteen  months 
from  the  date  of  his  administration,  pay  said  tax  on  distributive  shares 
and  legacies  in  his  hands,  and  on  failure  to  do  so  he  shall  forfeit  his  Com- 
missions. (2  Pub.  Gen.  Laws  1904,  p.  1836.) 

§  693.    Appointment  of  Appraisers  of  Real  Estate. 

Sec.  121.  In  all  cases  where  real  estate  of  any  kind  is  subject  to  the 
said  tax,  the  orphans  court  of  the  county  in  which  administration  is  granted 
shall  appoint  the  same  persons  who  may  have  been  appointed  to  value  the 
personal  estate  to  appraise  and  value  all  the  real  estate  of  the  deceased 
within  the  state.  (2  Pub.  Gen.  Laws  1904,  p.  1836.) 

§  694.     Warrant  to  Appraisers  of  Real  Estate. 

Sec.  122.  The  form  of  the  warrant  to  such  appraisers  shall  be  the  same 
as  to  appraisers  of  personal  property,  except  that  the  words  "real  estate" 
shall  be  inserted  therein  instead  of  the  words  "goods,  chattels  and  personal 
estate,"  and  the  words  "price  of  property"  instead  of  the  word  "article," 
and  the  appraisers  shall  take  the  oath  prescribed  for  appraisers  of  personal 
estate,  except  that  the  words  "real  estate"  shall  be  substituted  for  the 
words  "goods,  chattels  and  personal  estate,"  and  their  duties  and  proceed- 
ings shall,  in  every  respect,  be  the  s>ame  as  those  of  the  appraisers  of  per- 
sonal estate.  (2  Pub.  Gen.  Laws  1904,  p.  1836.) 

§  695.    Appraisement  of  Property  Lying  in  More  Than  One  County. 

Sec.  123.  If  the  estate  or  property  lies  in  more  than  one  county,  and  it 
is  not  convenient  for  the  appraisers  to  visit  the  other  county,  the  court  may 
appoint  two  appraisers  in  said  county.  (2  Pub.  Gen.  Laws  1904,  p.  1836.) 


MARYLAND  STATUTE.  511 

§  696.    Inventory  of  Real  Estate. 

Sec.  124,  The  inventory  of  the  real  estate  shall  be  entirely  separate  and 
distinct  from  that  of  the  personal  estate.  (2  Pub.  Gen.  Laws  1904,  p.  1837.) 

§  697.    Death  or  Refusal  of  Appraiser  to  Act. 

Sec.  125.  On  the  death  or  refusal  of  any  appraiser  to  act,  the  court  may 
appoint  another  in  his  place.  (2  Pub.  Gen.  Laws  1904,  p.  1837.) 

§  698.    Return  of  Inventory  of  Real  Estate. 

Sec.  126.  The  appraisers  shall  return  the  inventory,  when  completed,  to 
the  executor  or  administrator,  whose  duty  it  shall  be  to  return  the  same  to 
the  office  of  the  register  of  wills,  to  which  the  inventory  of  the  personal 
estate  is  returnable,  and  within  the  same  time  and  under  like  penalty,  and. 
shall  make  oath  that  said  inventory  or  inventories  ia  or  are  a  true  and  per- 
fect inventory  or  inventories  of  all  the  real  estate  of  the  deceased,  within 
this  state,  that  has  come  to  his  knowledge,  and  that,  should  he  thereafter 
discover  any  other  real  estate  belonging  to  the  deceased,  in  this  state,  he 
will  return  an  additional  inventory  thereof.  (2  Pub.  Gen.  Laws  1904,  p. 
1837.) 

§  699.    Appraisement  Deemed  to  be  True  Value  of  Real  Estate. 

Sec.  127.  The  appraisement  thus  made  shall  be  deemed  and  taken  to 
be  the  true  value  of  the  said  real  estate  upon  which  the  said  tax  shall  be 
paid.  (2  Pub.  Gen.  Laws  1904,  p.  1837.) 

§  700.    Lien  of  Tax. 

Sec.  128.  The  amount  of  said  tax  shall  be  a  lien  on  said  real  estate 
for  the  period  of  four  years  from  the  date  of  the  death  of  the  decedent, 
who  shall  have  died  seised  and  possessed  thereof.  (2  Pub.  Gen.  Laws  1904, 
p.  128.) 

§  701.    Collection  of  Tax — Sale  of  Real  Estate. 

Sec.  129.  The  executor  or  administrator  shall  collect  the  same  from  the 
parties  liable  to  pay  said  tax  or  their  legal  representatives  within  thirteen 
months  from  the  date  of  his  administration,  and  pay  the  same  to  the 
register  of  wills  of  the  county  or  city  in  which  administration  is  granted; 
and  if  the  said  parties  shall  neglect  or  fail  to  pay  the  same  within  that 
time,  the  orphans  court  of  the  said  county  or  city  shall  order  the  executor 
or  administrator  to  sell  for  cash  so  much  of  said  real  estate  as  may  be 
necessary  to  pay  said  tax  and  all  the  expenses  of  said  sale,  including 
the  commissions  of  the  executor  or  administrator  thereon;  and  after  the 
report  of  said  sale,  the  ratification  thereof  and  the  payment  of  the  pur- 
chase money,  the  executor  or  administrator  may  execute  a  valid  deed  for 
the  estate  sold,  and  not  before;  provided,  however,  that  nothing  in  this 
section  contained  shall  be  construed  to  confer  authority  on  the  orphans 
court  to  order  the  sale  of  any  real  estate  for  the  satisfaction  of  collateral 
inheritance  tax  after  the  expiration  of  four  years  from  the  date  of  the 
death  of  the  decedent,  who  shall  have  died  seised  and  possessed  of  said 
real  estate.  (2  Pub.  Gen.  Laws  1904,  p.  1837.)( 


512  INHERITANCE  TAXATION. 

§  702.     Estates  for  Life  or  for  Tears  and  Remainders. 

Sec.  130.  Whenever  any  estate,  real,  personal  or  mixed,  of  a  decedent 
shall  be  subject  to  the  tax  mentioned  in  the  thirteen  preceding  sections, 
and  there  be  a  life  estate  or  interest  for  a  term  of  years,  or  a  contingent 
interest,  given  to  one  party  and  the  remainder,  or  reversionary  interest, 
to  another  party,  the  orphans  court  of  the  county  or  city  in  which  admin- 
istration is  granted  shall  determine  in  its  discretion  and  at  such  time  as 
it  shall  think  proper  what  proportion  the  party  entitled  to  said  life 
estate,  or  interest  for  a  term  of  years,  or  contingent  interest,  shall  pay  of 
said  tax,  and  the  judgment  of  said  court  shall  be  final  and  conclusive, 
and  the  party  entitled  to  said  life  estate  or  interest  for  a  term  of  years, 
or  other  contingent  interest,  shall  within  thirty  days  after  the  date  of 
such  determination  pay  to  the  register  of  wills  his  proportion  of  said  tax; 
and  thereafter  the  said  court  shall  from  time  to  time  after  the  determina- 
tion of  the  preceding  estate  and  as  the  remainder  of  said  estate  shall  vest 
in  the  party  or  parties  entitled  in  remainder  or  reversion  determine  in  its 
discretion  what  proportion  of  the  residue  of  said  tax  shall  be  paid  by 
the  party  or  parties  in  whom  the  estate  shall  so  vest;  and  the  judgment 
of  the  said  court  shall  be  final  and  each  of  the  parties  successively  en- 
titled in  remainder  or  reversion  shall  pay  his  proportion  of  said  tax  to 
the  register  of  wills  within  thirty  days  after  the  date  of  such  determina- 
tion as  to  him;  and  the  proportion  of  the  tax  so  determined  to  be  paid 
by  the  party  entitled  to  the  life  interest  or  estate  shall  be  and  remain 
a  lien  upon  such  interest  or  estate  for  the  period  of  four  years  after  the 
date  of  the  death  of  the  decedent,  who  shall  have  died  seised  and  possessed 
of  the  property;  and  the  proportion  of  the  tax  so  determined  to  be  paid  by 
the  persons  respectively  entitled  to  the  remainder,  or  reversionary  interest, 
shall  be  a  lien  on  such  interest  for  the  period  of  four  years  from  the  date 
of  which  such  interest  shall  vest  in  possession.  (2  Pub.  Gen.  Laws  1904, 
p.  1838.) 

§  703.    Determination  of  Value  of  Estate  Less  Than  Absolute  Interest. 

Sec.  131.  Whenever  an  interest  in  any  estate,  real,  personal,  or  mixed, 
less  than  an  absolute  interest,  shall  be  devised  or  bequeathed  to  or  for 
the  use  and  benefit  of  any  person  or  object,  not  exempted  from  the 
tax  under  section  117,  then  only  such  interest  so  devised  or  bequeathed 
shall  be  liable  for  said  tax;  and  it  shall  be  the  duty  of  the  orphans  court 
of  the  county  or  city  in  which  administration  is  granted,  or  any  other 
court  assuming  jurisdiction  over  such  administration,  to  determine  as  soon 
after  administration  is  granted  as  possible,  on  application  of  such  person 
or  object,  the  value  of  such  interest  liable  for  said  tax,  by  deducting  from 
the  whole  value  of  the  estate  so  much  thereof  as  shall  be  the  value  of 
the  interest  therein  of  any  person  who,  under  said  section  117,  is  exempt 
from  said  tax,  and  the  residue  thereof  shall  be  the  value  of  said  interest 
upon  which  said  tax  is  payable;  and  said  tax  so  ascertained  shall  be  paid 
by  such  person  or  object  within  ninety  days  from  such  ascertainment,  with 
interest  thereon  at  six  per  cent,  per  annum,  after  the  expiration  of  twelve 
months  from  the  date  of  the  death  of  the  decedent,  under  whose  will  or 


MARYLAND  STATUTE.  513 

by  whose  intestacy  said  interest  is  acquired,  if  said  tax  has  not  sooner  been 
paid,  or  within  ninety  days  from  the  time  that  it  shall  be  ascertained 
that  such  person  or  object  shall  be  entitled  to  any  such  interest  in  any 
estate;  but  such  tax  shall  bear  interest  at  the  rate  of  six  per  cent  per  an- 
num from  the  expiration  of  twelve  months  from  said  death;  but  if  such 
person  or  object  shall  at  the  time  when  he,  she  or  it  comes  into  possession 
of  such  estate,  pay  a  tax  as  provided  for  in  said  section  117,  on  the  whole 
value  thereof.  (2  Pub.  Gen.  Laws  1904,  p.  1839.) 

§  704.    Sale  of  Property  to  Pay  Tax. 

Sec.  132.  If  any  of  the  parties  mentioned  in  sections  129  and  130  shall 
refuse  or  neglect  to  pay  the  several  proportions  so  decreed  by  the  orphans 
court  within  thirty  days  from  the  time  of  such  decree,  the  court  shall  order 
and  direct  the  executor  or  administrator  to  sell  all  the  right,  title  and 
interest  of  such  party  in  and  to  said  estate  or  property,  or  so  much  thereof 
as  the  court  may  deem  necessary,  to  pay  his  proportion  of  said  tax  and 
all  expenses  of  sale;  provided,  however,  that  nothing  in  this  section  con- 
tained shall  be  construed  to  confer  authority  on  the  orphans  court  to 
order  the  sale  for  the  satisfaction  of  collateral  inheritance  tax  of  any  life 
interest  after  the  expiration  of  four  years  from  the  date  of  the  death  of 
the  decedent,  who  shall  have  died  seised  and  possessed  of  the  property, 
or  of  any  remainder  or  reversionary  interest  after  the  expiration  of  four 
years  from  the  date  at  which  such  interest  shall  vest  in  possession.  Sec- 
tions 12>8,  129,  130  and  132  shall  take  effect  from  April  1,  1904,  and  be 
retroactive.  (2  Pub.  Gen.  Laws  1904,  p.  1839.) 

§  705.    Liability  of  Executor  on  Bond. 

Sec.  133.  The  bond  of  an  executor  or  administrator  shall  be  liable  for 
all  money  he  may  receive  under  this  article  for  taxes,  or  for  the  proceeds 
of  the  sales  of  real  estate  received  by  him  thereunder.  (2  Pub.  Gen.  Laws 
1904,  p.  1840.) 

§  706.    Revocation  of  Executor's  Letters  for  Failure  to  Perform  Duties. 

Sec.  134.  If  any  executor  or  administrator  shall  fail  to  perform  any  of 
the  duties  imposed  upon  him  by  this  article,  the  orphans  court  of  the 
county  in  which  the  administration  was  granted  may  revoke  his  admin- 
istration, and  his  bond  shall  be  liable,  and  the  same  proceedings  shall  be 
had  against  him  as  if  his  administration  had  been  revoked  for  any  other 
cause.  (2  Pub.  Gen.  Laws  1904,  p.  1840.) 

§  707.    Powers  and  Duties  of  Administrator  De  Bonis  Non. 

Sec.  135.  The  powers  and  duties  of  an  administrator  de  bonis  non,  or 
with  the  will  annexed,  shall  be  the  same  under  this  article  as  those  of 
an  executor  or  administrator,  and  he  shall  be  subject  to  the  same  liabilities. 
(2  Pub.  Gen.  Laws  1904,  p.  1840.) 

§  708.    Proceedings  Where  No  Administration  Taken  Out. 

Sec.  136.     In  all  cases  where  any  estate,  real,  personal  or  mixed,  shall 
be  subject  to  the  collateral  inheritance  tax  imposed  by  this  article  and 
88 


514  INHERITANCE  TAXATION. 

no  administration  is  taken  out  on  the  estate  of  the  person  who  died  seised 
and  possessed  thereof,  within  ninety  days  after  the  death  of  said  person 
the  orphans  court  of  the  county  in  which  such  administration  should  be 
granted  shall  issue  a  summons  for  the  parties  entitled  to  administration 
to  show  cause  wherefore  they  do  not  administer;  provided,  however,  that 
when  any  real  estate  shall  be  subject  to  said  tax  and  no  administration 
has  been  taken  on  the  estate  of  the  person  who  died  seised  thereof,  the 
orphans'  court  of  the  county  where  said  real  estate  shall  be  situate  may, 
on  the  application  of  anyone  interested  in  said  real  estate,  appoint  ap- 
praisers to  value  the  same  as  provided  by  the  preceding  sections  of  this 
article,  and  the  amount  of  said  tax  may  be  paid  to  the  register  of  wills 
of  the  county  where  the  said  application  shall  be  made.  (2  Pub.  Gen. 
Laws  1904,  p.  1840.) 

§  709.    Failure  of  Persons  Entitled  to  Take  Out  Administration. 

Sec.  137.  If  the  parties  entitled  by  law  to  administration  do  not  administer 
within  a  reasonable  time  to  be  fixed  by  the  said  court,  or  if  they  be  incapable, 
or  being  capable  if  they  decline  or  refuse  to  appear  on  proper  summons  or 
notice,  administration  shall  be  granted  to  such  person  as  the  court  may  deem 
proper.  (2  Pub.  Gen.  Laws  1904,  p.  1841.) 

§  710.    Application  for  Letters — Inquiry  as  to  Beal  Estate. 

Sec.  138.  In  all  cases  where  application  is  made  to  the  orphans  court  or 
register  of  wills  of  any  county  or  the  city  of  Baltimore  for  letters  testamentary 
or  of  administration,  the  said  court  or  register  shall  inquire  of  the  person  mak- 
ing application  whether  he  knows  or  believes  that  there  is  any  real  estate 
of  the  decedent  liable  to  the  collateral  inheritance  tax,  and  the  answer 
of  such  applicant  shall  be  given  on  oath  if  the  court  or  register  requires  it. 
(2  Pub.  Gen.  Laws  1904,  p.  1841.) 

§  711.     Receipts  for  Payment  of  Tax. 

Sec.  139.  The  register  of  wills  shall  give  to  the  person  paying  the  col- 
lateral inheritance  tax  imposed  by  this  article  duplicate  receipts  for  said 
tax,  one  of  which  shall  be  forwarded  by  said  person  to  the  treasurer  to 
be  by  him  preserved,  and  copies  thereof  shall  be  evidence  in  suit  upon  the 
bond  of  said  register.  (2  Pub.  Gen.  Laws  1904,  p.  1841.) 

§  712.    Payment    to    Treasurer — Commissions  of  Clerks  and  Registers  of 

Wills. 

Sec.  140.  It  shall  be  the  duty  of  the  several  clerks  and  the  several  reg- 
isters of  wills  in  this  state  to  account  with  and  pay  to  the  treasurer  on 
the  first  M'onday  of  March,  June,  September  and  December  in  each  and 
every  year  all  sums  of  money  received  by  them  respectively,  for  which 
the  clerks  shall  be  allowed  a  commission  of  two  and  one-half  per  centum, 
and  the  register  of  wills  shall  be  allowed  a  commission  of  twelve  and  one- 
half  per  centum  upon  the  amount  of  said  collateral  inheritance  tax,  and 
the  said  clerks  shall  be  allowed  a  commission  of  five  per  centum,  and  the 
register  of  wills  shall  be  allowed  a  commission  of  twenty-five  per  cent  upon 


MARYLAND  STATUTE.  515 

the  amount  received  of  the  tax  on  official  commissions  and  executors'  com- 
missions respectively,  so  paid  over.  (2  Pub.  Gen.  Laws  1904,  p.  1842;  Laws 
1&08,  p.  238.) 

§  713.    Failure  of  Clerks  or  Registers  to  Account. 

Sec.  141.  If  any  of  the  said  clerks  or  registers  shall  fail  to  account 
and  pay  over  as  required  in  the  preceding  section,  the  controller  shall, 
in  thirty  days  thereafter,  give  notice  thereof  to  the  state's  attorney  for 
the  county  or  city  whose  duty  it  shall  be  to  put  the  bond  of  such  clerk 
or  register  in  suit  for  the  use  of  the  state,  in  which  suit  a  recovery  shall 
be  had  for  the  amount  appearing  to  be  due,  with  interest  at  the  rate  of 
ten  per  cent  per  annum,  from  the  date  or  dates  when  the  same  was  payable 
as  aforesaid,  which  recovery  shall  be  evidence  of  misbehavior,  and  upon 
conviction  thereof  the  said  clerk  or  register  shall  be  removed  from  office, 
which  shall  thereupon  be  filled  as  prescribed  by  the  constitution;  and  such 
failure  on  the  part  of  any  clerk  or  register  shall  amount  to  a  forfeiture 
of  the  commission  to  which  he  would  otherwise  be  entitled.  (2  Pub.  Gen. 
Laws  1904,  p.  1842.) 


516  INHERITANCE  TAXATION. 

CHAPTER  XXXVI. 

MASSACHUSETTS  STATUTE. 

(Supplement  to  Revised  Laws  of  1902-08,  pp.  236-248;  Acts  of  1909,  pp. 
647-791;  Acts  of  1910,  p.  430;  Acts  of  1911,  pp.  327,  490.) 

§  714.  Transfers  Subject  to  Tax — Rates — Interest — Exemptions. 

§  715.  Stock  in  Corporation  Organized  Under  Laws  of  More  Than  One  State. 

S  716.  Property  Subject  to  Tax  Under  Laws  of  Another  State. 

5  717.  Time  for  Payment  of  Tax — Remainders — Liens — Interest. 

§  718.  Deposit  in  Lieu  of  Payment  of  Tax. 

§  719.  Assessment  upon  Actual  Value  of  Property. 

5  720.  Payment  of  Tax  on  Future  Interests. 

§  721.  Bequests  to  Executors  in  Lieu  of  Compensation. 

§  722.  Collection  of  Tax  by  Executor — Sale  of  Land. 

§  723.  Legacy  Charged  upon  Real  Estate. 

§  724.  Testamentary  Provision  for  Payment  of  Tax. 

§  725.  Sale  of  Real  Estate  to  Pay  Tax. 

§  726.  Inventory — Penalty  for  Failure  to  File. 

§  727.  Copies  of  Inventory  and  Other  Papers. 

§  728.  Transfers  of  Stock  by  Foreign  Executor. 

§  729.  Transfer  or  Delivery  of  Securities — Notice  to  Treasurer  and  Re- 
ceiver General. 

§  730.  Tax  Commissioner  to  be  Party  to  Petition  by  Foreign  Executor. 

§  731.  Refunding  of  Tax  Paid. 

§  732.  Appraisal  and  Valuation  of  Property. 

§  733.  Determination  of  Amount  of  Tax  by  Commissioner. 

§  734.  Jurisdiction  of  Probate  Court — Liability  of  Executor. 

§  735.  Application  by  Tax  Commissioner  for  Appointment  of  Administrator. 

§  736.  Account  of  Executor  not  Allowed  Until  Tax  Paid. 

§  737.  Proceedings  by  Treasurer  and  Receiver  General  to  Recover  Tax. 

§  738.  Retrospective  Operation  of  Statute. 

§  739.  Construction  of  Statute  With  Reference  to  Other  Laws. 

§  740.  Repeal  of  Other  Legislation. 

§  741.  Powers  of  Appointment. 

§  742.  Refusal  to  Furnish  Tax  Commissioner  With  Information. 

§  743.  Application  of  Provisions  of  This  Act  to  Unpaid  Taxes. 

§  744.  Application  of  Act  to  Administrators  Appointed  Prior  to  Passage. 

§  745.  Proceedings  to  Determine  Taxes  on  Real  Estate. 

§  746.  Right  to  Inspect  Papers  and  Records  and  Use  Them  in  Legal  Pro- 
ceedings. 

§  714.     Transfers  Subject  to  Tax — Rates — Interest — Exemptions. 

Sec.  1.  All  property  within  the  jurisdiction  of  the  commonwealth,  cor- 
poreal or  incorporeal,  and  any  interest  therein,  whether  belonging  to  inhab- 
itants of  the  commonwealth  or  not,  which  shall  pass  by  will,  or  by  the  laws 


MASSACHUSETTS  STATUTE.  517 

regulating  intestate  succession,  or  by  deed,  grant,  or  gift,  except  in  cases  of 
a  bona  fide  purchase  for  full  consideration  in  money  or  money's  worth,  made 
or  intended  to  take  effect  in  possession  or  enjoyment  after  the  death  of  the 
grantor,  to  any  person,  absolutely  or  in  trust,  except  to  or  for  the  use  of 
charitable,  educational  or  religious  societies  or  institutions,  the  property  of 
which  is  by  the  laws  of  this  commonwealth  exempt  from  taxation,  or  for 
or  upon  trust  for  any  charitable  purposes,  to  be  carried  out  within  this 
commonwealth,  or  to  or  for  the  use  of  a  city  or  town  within  this  common- 
wealth for  public  purposes,  or  to  or  for  the  use  of  (class  A)  the  husband, 
wife,  lineal  ancestor,  lineal  descendant,  adopted  child,  the  lineal  descendant 
of  any  adopted  child,  the  adoptive  parent  or  lineal  ancestor  of  an  adoptive 
parent,  the  wife  or  widow  of  a  son,  or  the  husband  of  a  daughter,  of  a 
decedent,  or  to  or  for  the  use  of  (class  B)  the  brother,  sister,  nephew  or 
niece  of  a  decedent,  shall  be  subject  to  a  tax  of  five  per  cent  of  its  value 
for  the  use  of  the  commonwealth;  and  such  property  which  shall  so  pass 
to  or  for  the  use  of  a  member  of  class  A  shall  be  s  ibject  to  a  tax  of  one 
per  cent  of  its  value  for  the  use  of  the  commonwealth  if  such  value  does 
not  exceed  fifty  thousand  dollars,  to  a  tax  of  one  and  one-half  per  cent 
if  its  value  exceeds  fifty  thousand  and  does  not  exceed  one  hundred  thousand 
dollars,  and  to  a  tax  of  two  per  cent  if  its  value  exceeds  one  hundred  thousand 
dollars;  and  such  property  which  shall  so  pass  to  or  for  the  use  of  a  member 
of  class  B  shall  be  subject  to  a  tax  of  three  per  cent  of  its  value  for  the 
use  of  the  commonwealth  if  such  value  does  not  exceed  twenty-five  thousand 
dollars,  to  a  tax  of  four  per  cent  if  its  value  exceeds  twenty-five  thousand 
and  does  not  exceed  one  hundred  thousand  dollars,  and  to  a  tax  of  five  per 
cent  if  its  value  exceeds  one  hundred  thousand  dollars;  and  administrators, 
executors  and  trustees,  and  any  grantees  under  such  conveyance  made  during 
the  grantor's  life,  shall  be  liable  for  such  taxes,  with  interest,  until  the  same 
have  been  paid;  but  no  bequest,  devise  or  distributive  share  of  an  estate 
which  shall  so  pass  to  or  for  the  use  of  a  husband,  wife,  father,  mother, 
child,  adopted  child,  adoptive  father  or  adoptive  mother  of  the  deceased, 
unless  its  value  exceeds  ten  thousand  dollars,  and  no  other  bequest,  devise 
or  distributive  share  of  an  estate  unless  its  value  exceeds  one  thousand  dollars, 
shall  be  subject  to  the  provisions  of  this  act;  but  no  tax  shall  be  exacted 
upon  property  so  passing  which  shall  reduce  its  value  below  the  amount  of 
the  above  exemptions.  (Sup.  Rev.  Laws  1902-08,  p.  241;  Acts  1909,  pp. 
647,  791.) 

§  715.     Stock  in  Corporation  Organized  Under  Laws  of  More  Than  One 

State. 

Sec.  2.  When  the  personal  estate  so  passing  from  any  person  not  an 
inhabitant  of  this  commonwealth  shall  consist  in  whole  or  in  part  of  shares 
in  any  railroad  or  street  railway  company  or  telegraph  or  telephone  company 
incorporated  under  the  laws  of  this  commonwealth  and  also  of  some  other 
state  or  country,  so  much  only  of  each  share  as  is  proportional  to  the  part 
of  such  company's  line  lying  within  this  commonwealth  shall  be  considered 
as  property  of  such  person  within  the  jurisdiction  of  the  commonwealth  for 


518  INHERITANCE  TAXATION. 

the  purposes   of  this  part.     (Sup.   Rev.  Laws   1902-08,  p.   242;    Acts    1909. 
p.  648.) 

§  716.    Property  Subject  to  Tax  Under  Laws  of  Another  State. 

Sec.  3.  Property  of  a  resident  of  the  commonwealth  which  is  not  therein 
at  the  time  of  his  death,  including  so  much  of  each  share  of  stock  in  any 
railroad  or  street  railway  company  or  telegraph  or  telephone  company  incor- 
porated under  the  laws  of  this  commonwealth  and  also  under  the  laws  of 
some  other  state  or  country  as  is  proportional  to  the  part  of  such  company's 
line  lying  without  the  commonwealth,  shall  not  be  taxable  under  the  provisions 
of  this  part  if  legally  subject  in  another  state  or  country  to  a  tax  of  like 
character  and  amount  to  that  hereby  imposed,  and  if  such  tax  be  actually 
paid  or  guaranteed  or  secured  in  accordance  with  law  in  such  other  state 
or  country;  if  legally  subject  in  another  state  or  country  to  a  tax  of  like 
character  but  of  less  amount  than  that  hereby  imposed  and  such  tax  be 
actually  paid  or  guaranteed  or  secured  as  aforesaid,  such  property  shall  be- 
taxable  under  this  part  to  the  extent  of  the  difference  between  the  tax  thus 
actually  paid,  guaranteed  or  secured,  and  the  amount  for  which  such  prop- 
erty would  otherwise  be  liable  hereunder.  Property  of  a  nonresident  decedent 
which  is  within  the  jurisdiction  of  the  commonwealth  at  the  time  of  his 
death,  if  subject  to  a  tax  of  like  character  with  that  imposed  by  this  part 
by  the  law  of  the  state  or  country  of  his  residence,  shall  be  subject  only 
to  such  portion  of  the  tax  hereby  imposed  as  may  be  in  excess  of  such  tax 
imposed  by  the  laws  of  such  state  or  country:  provided,  that  a  like  exemption 
is  made  by  the  laws  of  such  other  state  or  country  in  favor  of  estates  of 
citizens  of  this  commonwealth,  but  no  such  exemption  shall  be  allowed  until 
such  tax  provided  for  by  the  law  of  such  other  state  or  country  shall  be 
actually  paid,  guaranteed,  or  secured  in  accordance  with  law.  The  provisions 
of  this  act  shall  apply  to  all  cases  in  which  the  tax  remains  unpaid  at  the 
date  of  the  passage  hereof.  This  act  shall  take  effect  upon  its  passage. 
(Sup.  Eev.  Laws  1902-08,  p.  242;  Acts  1909,  pp.  648,  793;  Acts  1911,  pp. 
490,  491,  approved  May  27,  1911.) 

§  717.     Time  for  Pa,yment  of  Tax — Remainders — Liens — Interest. 

Sec.  4.  Except  as  hereinafter  provided,  taxes  imposed  by  the  provisions 
of  this  act  shall  be  payable  to  the  treasurer  and  receiver  general  by  the 
executors,  administrators  or  trustees  at  the  expiration  of  two  years  after 
the  date  of  their  giving  bond.  If  the  probate  court,  acting  under  the 
provisions  of  section  thirteen  of  chapter  one  hundred  and  forty-one  of  the 
Revised  Laws,  has  ordered  the  executor  or  administrator  to  retain  funds  to 
satisfy  a  claim  of  a  creditor,  the  payment  of  the  tax  may  be  suspended 
by  the  court,  to  await  the  disposition  of  such  claim.  In  all  cases  where 
there  shall  be  a  grant,  devise,  descent,  or  bequest  to  take  effect  in  possession 
or  come  into  actual  enjoyment  after  the  expiration  of  one  or  more  life 
estates  or  a  term  of  years,  the  taxes  thereon  shall  be  payable  by  the  executors, 
administrators  or  trustees  in  office  when  such  right  of  possession  accrues,  or, 
if  there  is  no  such  executor,  administrator  or  trustee,  by  the  person  or  persons 
so  entitled  thereto,  at  the  expiration  of  one  year  after  the  date  when  the 


MASSACHUSETTS  STATUTE.  519 

right  of  possession  accrues  to  the  person  or  persons  so  entitled.  If  the 
taxes  are  not  paid  when  due,  interest  shall  be  charged  and  collected  from 
the  time  the  same  became  payable.  Property  of  which  a  decedent  dies  seised 
or  possessed,  subject  to  taxes  as  aforesaid,  in  whatever  form  of  investment 
it  may  happen  to  be,  and  all  property  acquired  in  substitution  therefor,  shall 
be  charged  with  a  lien  for  all  taxes  and  interest  thereon  which  are  or  may 
become  due  on  such  property;  but  said  lien  shall  not  affect  any  personal 
property  after  the  same  has  been  sold  or  disposed  of  for  value  by  the 
executors,  administrators  or  trustees.  The  lien  charged  by  this  act  upon  any 
real  estate  or  separate  parcel  thereof  may  be  discharged  by  the  payment  of 
all  taxes  due  and  to  become  due  upon  said  real  estate  or  separate  parcel,  or 
by  an  order  or  decree  of  the  probate  court  discharging  said  lien  and 
securing  the  payment  to  the  commonwealth  of  the  tax  due  or  to  become  due 
by  bond  or  deposit  as  hereinafter  provided,  or  by  transferring  such  lien 
to  other  real  estate  owned  by  the  owner  or  owners  of  said  real  estate  or 
separate  parcel  thereof.  (Sup.  Kev.  Laws  1902-08,  p.  242;  Acts  1909,  pp; 
649,  792.) 

§  718.    Deposit  in  Lieu  of  Payment  of  Tax. 

Sec.  5.  In  every  case  where  there  shall  be  a  bequest  or  grant  of  personal 
estate  made  or  intended  to  take  effect  in  possession  or  enjoyment  after  the 
death  of  the  grantor,  to  take  effect  in  possession  or  come  into  actual  enjoy- 
ment after  the  expiration  of  one  or  more  life  estates  or  a  term  of  years, 
whether  conditional  upon  the  happening  of  a  contingency  or  dependent  upon 
the  exercise  of  a  discretion,  or  subject  to  a  power  of  appointment  or  other- 
wise, the  executor  or  administrator  or  grantee  may  deposit  with  the  treasurer 
and  receiver  general  a  sum  of  money  sufficient  in  the  opinion  of  the  tax-  com- 
missioner to  pay  all  taxes  which  may  become  due  upon  such  bequest  or 
grant,  and  the  person  or  persons  having  the  right  to  the  use  or  income 
of  such  personal  estate  shall  be  entitled  to  receive  from  the  commonwealth 
interest  at  the  rate  of  two  and  one-half  per  cent  per  annum  upon,  such  de- 
posit, and  when  said  tax  shall  become  due  the  treasurer  and  receiver  general 
shall  repay  to  the  persons  entitled  thereto  the  difference  between  the  tax 
certified  and  the  amount  deposited;  or  any  executor,  administrator,  trustee  or 
grantee,  or  any  person  interested  in  such  bequest  or  grant  may  give  bond  to 
a  judge  of  the  probate  court  having  jurisdiction  of  the  estate  of  the  decedent, 
in  such  amount  and  with  such  sureties  as  said  court  may  approve,  with  the 
condition  that  the  obligor  shall  notify  the  tax  commissioner  when  said  tax 
becomes  due  and  shall  then  pay  the  same  to  the  treasurer  and  receiver  gen- 
eral. (Sup.  Rev.  Laws  1902-08,  p.  243;  Acts  1909,  p.  650.) 

§  719.    Assessment  upon  Actual  Value  of  Property. 

Sec.  6.  Except  as  hereinafter  provided,  said  tax  shall  be  assessed  upon 
the  actual  value  of  the  property  at  the  time  of  the  death  of  the  decedent. 
In  every  case  where  there  shall  be  a  devise,  descent,  bequest  or  grant  to 
take  effect  in  possession  or  enjoyment  after  the  expiration  of  one  or  more 
life  estates  or  a  term  of  years,  the  tax  shall  be  assessed  on  the  actual  value 
of  the  property  or  the.  interest  of  the  beneficiary  therein  at  the  time  when 


520  INHERITANCE  TAXATION. 

he  becomes  entitled  to  the  same  in  possession  or  enjoyment.  The  value  of 
an  annuity  or  a  life  interest  in  any  such  property,  or  any  interest  therein 
less  than  an  absolute  interest,  shall  be  determined  by  the  "American  Ex- 
perience Tables"  at  four  per  cent  compound  interest.  (Sup.  Rev.  Laws  1902- 
08,  p.  243;  Acts  1909,  pp.  650,  793.) 

§  720.    Payment  of  Tax  on  Future  Interests. 

Sec.  7.  Any  person  or  persons  entitled  to  a  future  interest  or  to  future 
interests  in  any  property  may  pay  the  tax  on  account  of  the  same  at  any 
time  before  such  tax  would  be  due  in  accordance  with  the  provisions  herein- 
before contained,  and  in  such  cases  the  tax  shall  be  assessed  upon  the 
actual  value  of  the  interest  at  the  time  of  the  payment  of  the  tax,  and  such 
value  shall  be  determined  by  the  tax  commissioner  as  hereinafter  provided. 
In  every  case  in  which  it  is  impossible  to  compute  the  present  value  of  any 
interest  the  tax  commissioner  may,  with  the  approval  of  the  attorney  general, 
effect  such  settlement  of  the  tax  as  he  shall  deem  to  be  for  the  best  interests 
of  the  commonwealth,  and  payment  of  the  sum  so  agreed  upon  shall  be  a 
full  satisfaction  of  such  tax.  (Sup.  Eev.  Laws  1902-08,  p.  244;  Acts  1909, 
pp.  651,  794.) 

§  721.    Bequests  to  Executors  in  Lieu  of  Compensation. 

Sec.  8.  If  a  testator  gives,  bequeaths  or  devises  to  his  executors  or  trustees 
any  property  otherwise  liable  to  said  tax,  in  lieu  of  their  compensation,  the 
value  thereof  in  excess  of  reasonable  compensation,  as  determined  by  the 
probate  court  upon  the  application  of  any  interested  party  or  of  the  tax 
commissioner,  shall  nevertheless  be  subject  to  the  provisions  of  this  part. 
(Sup.  Her.  Laws,  1902-08,  p.  244;  Acts  1909,  p.  651.) 

§  722.    Collection  of  Tax  by  Executor — Sale  of  Land. 

Sec.  9.  An  executor,  administrator  or  trustee  holding  property  subject 
to  said  tax  shall  deduct  the  tax  therefrom  or  collect  it  from  the  legatee  or 
person  entitled  to  said  property;  and  he  shall  not  deliver  property  or  a  specific 
legacy  subject  to  said  tax  until  he  has  collected  the  tax  thereon.  An  executor 
or  administrator  shall  collect  taxes  due  upon  land  which  is  subject  to  tax 
under  the  provisions  hereof  from  the  heirs  or  devisees  entitled  thereto,  and 
he  may  be  authorized  to  sell  said  land,  according  to  the  provisions  of  section 
twelve,  if  they  refuse  or  neglect  to  pay  said  tax.  (Sup.  Eev.  Laws,  1902-08, 
p.  244;  Acts  1909,  p.  651.) 

§  723.    Legacy  Charged  upon  Real  Estate. 

Sec.  10.  If  a  legacy  subject  to  said  tax  is  charged  upon  or  payable  out 
of  real  estate,  the  heir  or  devisee,  before  paying  it,  shall  deduct  said  tax 
therefrom  and  pay  it  to  the  executor,  administrator  or  trustee,  and  the  tax  shall 
remain  a  lien  upon  said  real  estate  until  it  is  paid.  Payment  thereof  may  be 
enforced  by  the  executor,  administrator  or  trustee  in  the  same  manner  as  the 
payment  of  the  legacy  itself  could  be  enforced.  (Sup.  Eev.  Laws  1902-08,  p. 
244;  Acts  1909,  p.  651.) 


MASSACHUSETTS  STATUTE.  521 

§  724.    Testamentary  Provision  for  Payment  of  Tax. 

Sec.  11.  When  provision  is  made  by  any  will  or  other  instrument  for  pay- 
ment of  the  legacy  or  succession  tax  upon  any  gift  thereby  made  out  of  any 
property  other  than  that  so  given,  no  tax  shall  be  chargeable  upon  any  money 
to  be  applied,  in  payment  of  such  tax.  (Sup.  Rev.  Laws  1902-08,  p.  244;  Acts 
1909,  p.  652.) 

§  725.    Sale  of  Real  Estate  to  Pay  Tar. 

Sec.  12.  The  probate  court  may  authorize  executors,  administrators  and  trus- 
tees to  sell  the  real  estate  of  a  decedent  for  the  payment  of  said  tax  in  the  same 
manner  as  it  may  authorize  them  to  sell  real  estate  for  the  payment  of  debts. 
(Sup.  Rev.  Laws  1902-08,  p.  244;  Acts  1909,  p.  652.) 

§  726.    Inventory — Penalty  for  Failure  to  File. 

See.  13.  A  full  and  complete  inventory  and  appraisal  under  oath  of  every 
estate  shall  be  filed  in  the  probate  court  or  with  the  tax  commissioner  by  the 
executor,  administrator  or  trustee  within  three  months  after  his  appointment, 
and  such  inventory  shall  contain  a  complete  list  of  all  the  assets  within  the 
knowledge  of  the  said  executor,  administrator  or  trustee.  If  he  neglects  or  re- 
fuses to  file  such  an  inventory  and  appraisal  he  shall  be  liable  to  a  penalty  of 
not  more  than  one  thousand  dollars,  which  shall  be  recovered  by  the  tax  commis- 
sioner for  the  use  of  the  commonwealth,  and  the  register  of  probate  shall  notify 
the  tax  commissioner  within  thirty  days  after  the  expiration  of  said  three, 
months  of  the  failure  of  any  executor,  administrator  or  trustee  to  file  an  in- 
ventory and  appraisal  in  his  office.  (Sup.  Rev.  Laws  1902-08,  p.  244;  Acts 
1909,  pp.  652,  794.) 

§  727.    Copies  of  Inventory  and  Other  Papers. 

Sec.  14.  Within  thirty  days  after  the  filing  of  the  inventory  and  appraisal 
provided  for  in  the  preceding  section,  the  register  of  probate  shall  send  by 
mail  to  the  tax  commissioner  a  copy  thereof.  The  register  shall  also,  within 
the  same  period,  send  by  mail  to  the  tax  commissioner  a  copy  of  the  will  of 
the  decedent,  if  such  has  been  allowed  by  the  probate  court.  The  register 
shall  also  furnish  such  copies  of  papers  in  his  office  as  the  tax  commissioner 
shall  require,  and  shall  furnish  information  as  to  the  records  and  files  in  his 
office  in  such  form  as  the  tax  commissioner  may  require.  A  refusal  or  neglect 
by  the  register  so  to  send  a  copy  of  such  inventory  and  appraisal,  or  to  furnish 
such  copies  or  information  shall  be  a  breach  of  his  official  bond;  but  the  tax 
commissioner  may  excuse  the  register  from  filing  inventories  or  copies  of  in- 
ventories and  of  wills  of  estates  no  part  of  which,  in  his  judgment,  appears 
to  be  subject  to  a  tax  under  the  provisions  of  this  chapter.  (Sup.  Rev.  Laws 
1902-08,  p.  245;  Acts  1909,  pp.  652,  795.) 

§  728.     Transfers  of  Stock  by  Foreign  Executor. 

Sec.  15.  If  a  foreign  executor,  administrator  or  trustee  assigns  or  trans- 
fers any  stock  in  any  national  bank  located  in  this  commonwealth  or  in  any 
corporation  organized  under  the  laws  of  this  commonwealth,  owned  by  a  de- 
ceased nonresident  at  the  date  of  his  death  and  liable  to  a  tax  under  the  pro- 


522  INHERITANCE   TAXATION. 

Yisions  of  this  part,  the  tax  shall  be  paid  to  the  treasurer  and  receiver  general 
at  the  time  of  such  assignment  or  transfer;  and  if  it  is  not  paid  when  due, 
such  executor,  administrator  or  trustee  shall  be  personally  liable  therefor  until 
it  is  paid.  A  bank  located  in  this  commonwealth  or  a  corporation  organized 
under  the  laws  of  this  commonwealth  which  shall  record  a  transfer  of  any 
share  of  its  stock  made  by  a  foreign  executor,  administrator  or  trustee,  or 
issue  a  new  certificate  for  a  share  of  its  stock  at  the  instance  of  a  foreign  exec- 
utor, administrator  or  trustee,  before  all  taxes  imposed  thereon  by  the  pro- 
visions of  this  part  have  been  paid,  shall  be  liable  for  such  tax  in  an  action 
of  contract  brought  by  the  treasurer  and  receiver  general.  (Sup.  Eev.  Laws 
1902-08,  p.  249;  Acts  1909,  p.  653.) 

§  729.    Transfer  or  Delivery  of  Securities — Notice  to  Treasurer  and  Re- 
ceiver General. 

Sec.  16.  Securities  or  assets  belonging  to  the  estate  of  a  deceased  non- 
resident shall  not  be  delivered  or  transferred  to  a  foreign  executor,  ad- 
ministrator or  legal  representative  of  said  decedent,  unless  such  executor, 
administrator  or  legal  representative  has  been  licensed  to  receive  such 
securities  or  assets  under  the  provisions  of  section  three  of  chapter  one 
hundred  and  forty-eight  of  the  Revised  Laws,  without  serving  notice  upon 
the  tax  commissioner  of  the  time  and  place  of  such  intended  delivery  or 
transfer,  seven  days  at  least  before  the  time  of  such  delivery  or  transfer, 
but  the  notice  required  by  section  three  of  said  chapter  one  hundred  and 
forty-eight  to  be  given  to  the  treasurer  and  receiver  general  shall  be  given 
to  the  tax  commissioner  in  regard  to  all  property  subject  to  the  provisions 
of  this  part,  instead  of  being  given  to  the  treasurer  and  receiver  general. 
The  tax  commissioner,  either  personally  or  by  representative,  may  examine 
such  securities  or  assets  at  the  time  of  such  delivery  or  transfer.  Failure 
to  serve  such  notice  or  to  allow  such  examination  shall  render  the  person 
or  corporation  making  the  delivery  or  transfer  liable,  in  an  action  of  con- 
tract brought  by  the  treasurer  and  receiver  general,  to  the  payment  of  the 
tax  due  upon  said  securities  or  assets.  (Sup.  Eev.  Laws  1902-08,  p.  246; 
Acts  1909,  p.  653.) 

§  730.     Tax  Commissioner  to  be  Party  fo  Petition  by  Foreign  Executor. 

Sec.  17.  The  tax  commissioner  shall  be  made  a  party  to  all  petitions  by 
foreign  executors,  administrators  or  trustees  brought  under  the  provisions 
of  section  three  of  chapter  one  hundred  and  forty-eight  of  the  Revised 
Laws,  and  no  decree  shall  be  made  upon  any  such  petition  unless  it  appears 
that  notice  of  such  petition  has  been  served  on  the  tax  commissioner  four- 
teen days  at  least  before  the  return  of  such  petition.  (Sup.  Rev.  Laws,  1902— 
08,  p.  246;  Acts  1909,  p.  654.) 

§  731.    Refunding  of  Tax  Paid. 

Sec.  18.  If  a  person  who  has  paid  such  tax  afterward  refunds  a  portion 
of  the  property  on  which  it  was  paid,  or  if  it  is  judicially  determined  that 
the  whole  or  any  part  of  such  tax  ought  not  to  have  been  paid,  such  tax, 


MASSACHUSETTS  STATUTE.  523 

or  the  due  proportion  thereof,  shall  be  repaid  to  him  by  the  executor,  ad- 
ministrator or  trustee.     (Sup.  Rev.  Laws  1902-08, 'p.  246;  Acts  1909,  p.  654.) 

§  732.    Appraisal  and  Valuation  of  Property. 

Sec.  19.  The  value  of  the  property  upon  which  the  tax  is  computed 
shall  be  determined  by  the  tax  commissioner  and  notified  by  him  to  the 
person  or  persons  by  whom  the  tax  is  payable,  and  such  determination  shall 
be  final  unless  the  value  so  determined  shall  be  reduced  by  proceedings  as 
herein  provided.  At  any  time  within  three  months  after  such  determina- 
tion the  probate  court  shall,  upon  the  application  of  any  party  interested 
in  the  succession,  or  of  the  executor,  administrator  or  trustee,  appoint  one 
disinterested  appraiser  or  three  disinterested  appraisers,  who  first  being 
sworn,  shall  appraise  such  property  at  its  actual  market  value,  as  of  the  day 
of  the  death  of  the  decedent  and  shall  malce  return  thereof  to  said  court. 
Such  return,  when  accepted  by  said  court,  shall  be  final:  provided,  that  any 
party  aggrieved  by  such  appraisal  shall  have  an  appeal  upon  matters  of 
law.  One-half  of  the  fees  of  said  appraisers,  as  determined  by  the  judge  of 
said  court,  shall  be  paid  by  the  treasurer  and  receiver  general,  and  one-half 
of  said  fees  shall  be  paid  by  the  other  party  or  parties  to  said  proceeding. 
(Sup.  Eev.  Laws  1&02-08,  p.  246;  Acts  1909,  p.  654.) 

§  733.    Determination  of  Amount  of  Tax  by  Commissioner. 

Sec.  20.  The  tax  commissioner  shall  determine  the  amount  of  tax  due 
and  payable  upon  any  estate  or  upon  any  part  thereof,  and  shall  certify 
the  amount  so  due  and  payable  to  the  treasurer  and  receiver  general  and 
to  the  person  or  persons  by  whom  the  tax  is  payable;  but  in  the  determina- 
tion of  the  amount  of  any  tax  said  tax  commissioner  shall  not  be  required 
to  consider  any  payments  on  account  of  debts  or  expenses  of  administration 
which  have  not  been  allowed  by  the  probate  court  having  jurisdiction  of 
said  estate.  Payment  of  the  amount  so  certified  shall  be  a  discharge  of  the 
tax.  An  executor,  administrator,  trustee  or  grantee  who  is  aggrieved  by  any 
determination  of  the  tax  commissioner  may,  within  one  year  after  the  pay- 
ment of  any  tax  to  the  treasurer  and  receiver  general,  apply  by  a  petition  in 
equity  to  the  probate  court  having  jurisdiction  of,  the  estate  of  the  decedent 
for  the  abatement  of  said  tax  or  any  part  thereof,  and  if  the  court  adjudges 
that  said  tax  or  any  part  thereof  was  wrongly  exacted  it  shall  order  an  abate- 
ment of  such  portion  of  said  tax  as  was  assessed  without  authority  of  law. 
Upon  a  final  decision  ordering  an  abatement  of  any  portion  of  said  tax,  the 
treasurer  and  receiver  general  shall  pay  the  amount  adjudged  to  have  been 
illegally  exacted,  with  interest,  without  any  further  act  or  resolve  making  ap- 
propriation therefor.  (Sup.  Rev.  Laws,  1902-08,  p.  247;  Acts  1909,  p.  654.) 

§  734.    Jurisdiction  of  Probate  Court — Liability  of  Executor. 

Sec.  21.  The  probate  court  having  jurisdiction  of  the  settlement  of  the 
estate  of  the  decedent  shall,  subject  to  appeal  as  in  other  cases,  hear  and 
determine  all  questions  relative  to  said  tax,  and  the  treasurer  and  receiver 
general  shall  represent  the  commonwealth  in  any  such  proceedings.  If  the 
court  shall  find  that  any  tax  remains  due,  it  shall  order  the  executor,  ad- 


524f  INHERITANCE  TAXATION. 

ministrator  or  trustee  to  pay  the  same,  with  interest  and  costs;  and  execu- 
tion shall  be  awarded  against  the  goods  and  estate  of  the  deceased  in  the 
hands  of  the  executor,  administrator  or  trustee,  or,  if  it  appears  that  there 
are  no  such  goods  or  estate  in  his  hands,  against  the  goods  and  estate  of 
the  executor,  administrator  or  trustee,  as  if  for  his  own  debt;  but  the 
administrators,  executors,  trustees  and  grantees  hereinbefore  mentioned 
shall  be  personally  liable  only  for  such  taxes  as  shall  be  payable  while  they 
continue  in  the  said  offices  or  have  title  as  such  grantees  respectively. 
(Sup.  Eev.  Laws  1902-08,  p.  247;  Acts  19t)9,  p.  655.) 

§  735.    Application  by  Tax  Commissioner   for  Appointment  of  Adminis- 
trator. 

Sec.  22.  If,  upon  the  decease  of  a  person  leaving  an  estate  liable  to  a 
tax  under  the  provisions  of  this  part,  a  will  disposing  of  such  estate  is  not 
offered  for  probate,  or  an  application  for  administration  made  within  four 
months  after  such  decease,  the  probate  court,  upon  application  by  the  tax 
commissioner,  shall  appoint  an  administrator,  if  it  then  appears  that  there  is 
no  will  in  existence.  (Sup.  Eev.  Laws  1902-08,  p.  247;  Acts  1909,  p.  655.) 

§  736.    Account  of  Executor  not  Allowed  Until  Tax  Paid. 

Sec.  23.  No  final  account  of  an  executor,  administrator  or  trustee  shall 
be  allowed  by  the  probate  court  unless  such  account  shows,  and  the  judge 
of  said  court  finds,  that  all  taxes  imposed  by  the  provisions  of  this  part 
upon  any  property  or  interest  therein  belonging  to  the  estate  to  be  settled 
by  said  account  and  already  payable,  have  been  paid,  and  that  all  taxes 
which  may  become  due  on  said  estate  have  been  paid  or  settled  as  herein- 
before provided,  or  that  the  payment  thereof  to  the  commonwealth  is 
secured  by  bond  or  deposit  or  by  lien  on  real  estate.  The  certificate  of  the 
tax  commissioner  and  the  receipt  of  the  treasurer  and  receiver  general  for 
the  amount  of  the  tax  therein  certified  shall  be  conclusive  as  to  the  pay- 
ment of  the  tax,  to  the  extent  of  said  certification.  (Sup.  Eev.  Laws  1902- 
08,  p.  247;  Acts  1909,  p.  655.) 

§  737.    Proceedings  by  Treasurer  and  Eeceiver  General  to  Recover  Tax. 

Sec.  24.  The  treasurer  and  receiver  general  shall  commence  proceedings 
for  the  recovery  of  any  of  said  taxes  within  six  months  after  the  same 
become  payable;  and  also  whenever  the  judge  or  a  probate  court  certifies 
to  him  that  the  final  account  of  an  executor,  administrator  or  trustee  has 
been  filed  in  such  court,  and  that  the  settlement  of  the  estate  is  delayed 
because  of  the  nonpayment  of  said  tax.  The  probate  court  shall  so  certify 
upon  the  application  of  any  heir,  legatee  or  other  person  interested  therein, 
and  may  extend  the  time  of  payment  of  said  tax  whenever  the  circumstances 
of  the  case  require.  (Sup.  Eev.  Laws  1902-08,  p.  247;  Acts  1909,  p.  655.) 

§  738.     Retrospective  Operation  of  Statute. 

Sec.  25.  This  part  shall  not  apply  to  estates  of  persons  deceased  prior  to 
the  date  when  chapter  five  hundred  and  sixty-three  of  the  acts  of  the  year 
nineteen  hundred  and  seven  took  effect,  nor  to  property  passing  by  deed, 


MASSACHUSETTS  STATUTE.  525 

grant,  sale  or  gift  made  prior  to  said  date;  but  said  estates  and  property 
shall  remain  subject  to  the  provisions  of  law  in  force  prior  to  the  passage 
of  said  chapter.  (Sup.  Rev.  Laws  1902-08,  p.  248;  Acts  1909,  p.  656.) 

§  739.    Construction  of  Statute  With  Reference  to  Other  Laws. 

Sec.  26.  The  provisions  of  this  act,  so  far  as  they  are  the  same  as  those 
of  existing  statutes,  shall  be  construed  as  continuations  thereof,  and  not 
as  new  enactments,  and  a  reference  in  a  statute  which  has  not  been  repealed 
to  provisions  of  law  which  have  been  revised  and  re-enacted  herein  shall  be 
construed  as  applying  to  such  provisions  as  so  incorporated  in  this  act; 
they  shall  not  affect  any  act  done,  liability  incurred,  or  any  right  accrued 
and  established,  or  any  suit  or  prosecution,  civil  or  criminal,  pending  or  to 
be  instituted,  to  enforce  any  right  or  penalty  or  punish  any  offense  under 
the  authority  of  existing  laws,  but  the  proceedings  in  such  cases  shall 
conform  to  the  provisions  of  this  act.  (Sup.  Eev.  Laws  1902-08,  p.  248; 
Acts  1909,  p.  656.) 

§  740.     Repeal  of  Other  Legislation. 

•Sec.  27.  Nothing  in  this  act  contained  shall  be  construed  as  repealing 
or  in  any  way  affecting  any  other  egislation  passed  in  the  year  nineteen 
hundred  and  nine.  (Acts  1909,  p.  657. ), 

§  741.    Powers  of  Appointment. 

Sec.  28.  Whenever  any  person  shall  exercise  a  power  of  appointment 
derived  from  any  disposition  of  property  made  prior  to  September  first, 
nineteen  hundred  and  seven,  such  appointment  when  made  shall  be  deemed 
to  be  a  disposition  of  property  by  the  person  exercising  such  power,  taxable 
under  the  provisions  of  chapter  five  hundred  and  sixty-three  of  the  acts  of 
the  year  nineteen  hundred  and  seven,  and  of  all  acts  in  amendment  thereof 
and  in  addition  thereto,  in  the  same  manner  as  though  the  property  to 
which  such  appointment  relates  belonged  absolutely  to  the  donee  of  such 
power,  and  had  been  bequeathed  or  devised  by  the  donee  by  will;  and 
whenever  any  person  possessing  such  a  power  of  appointment  so  derived 
shall  omit  or  fail  to  exercise  the  same  within  the  time  provided  therefor,  in 
whole  or  in  part,  a  disposition  of  property  taxable  under  the  provisions  of 
chapter  five  hundred  and  sixty-three  of  the  acts  of  the  year  nineteen 
hundred  and  seven  and  all  acts  in  amendment  thereof  and  in  addition 
thereto  shall  be  deemed  to  take  place  to  the  extent  of  such  omission  or 
failure  in  the  same  manner  as  though  the  persons  or  corporations  thereby 
becoming  entitled  to  the  possession  or  enjoyment  of  the  property  to  which 
such  power  related  had  succeeded  thereto  by  a  will  of  the  donee  of  the 
power  failing  to  exercise  such  power,  taking  effect  at  the  time  of  such 
omission  or  failure.  The  provisions  of  chapter  fifteen  of  the  Revised  Laws, 
chapter  four  hundred  and  seventy-three  of  the  acts  of  the  year  nineteen 
hundred  and  two,  chapters  two  hundred  and  forty-eight,  two  hundred  and 
fifty-one  and  two  hundred  and  seventy-six  of  the  acts  of  the  year  nineteen 
hundred  and  three,  chapter  four  hundred  and  twenty-one  of  acts  of  the 
vear  nineteen  hundred  and  four,  chapters  three  hundred  and  sixty-seven 


526  INHERITANCE   TAXATION. 

and  four  hundred  and  seventy  of  the  acts  of  the  year  nineteen  hundred  and 
five  and  chapter  four  hundred  and  thirty-six  of  the  acts  of  nineteen  hun- 
dred and  six  are  hereby  repealed  in  so  far  as  they  apply  to  the  taxation  of 
property  passing  through  or  by  reason  of  powers  of  appointment  created  in 
dispositions  of  property  made  subsequent  to  June  eleventh,  eighteen  hun- 
dred and  ninety-one  and  prior  to  September  first,  nineteen  hundred  and 
seven,  which  have  not  been  fully  exercised  prior  to  the  passage  of  this  act 
or  the  taxes  thereon  settled  under  the  provisions  of  chapter  four  hundred 
and  twenty-one  of  the  acts  of  the  year  nineteen  hundred  and  four.  The 
provisions  of  section  twenty-five  of  chapter  five  hundred  and  sixty-three 
of  the  acts  of  the  year  nineteen  hundred  and  seven  are  hereby  repealed 
in  so  far  as  the  same  are  inconsistent  with  the  provisions  of  this  act. 
(Acts  1909,  p.  796.) 

§  742.     Refusal  to  Furnish  Tax  Commissioner  With  Information. 

Sec.  29.  Whenever  an  executor,  administrator,  trustee,  or  any  person 
who  is  liable  to  taxation  under  the  provisions  of  chapter  five  hundred  and 
sixty-three  of  the  acts  of  the  year  nineteen  hundred  and  seven  and  all 
acts  in  amendment  thereof  and  in  addition  thereto,  refuses  or  neglects  to 
furnish  the  tax  commissioner  with  any  information  which  in  the  opinion  of 
the  tax  commissioner  is  necessary  to  the  proper  computation  of  the  taxes 
payable  by  such  executor,  administrator,  trustee  or  person,  after  having 
been  requested  so  to  do,  the  tax  commissioner  shall  certify  such  taxes  at 
the  highest  rate  at  which  they  could  in  any  event  be  computed.  (Acts 
1909,  p.  798.) 

§  743.    Application  of  Provisions  of  This  Act  to  Unpaid  Taxes. 

Sec.  30.  The  provisions  of  sections  two  (section  four  herein)  and  four 
(section  seven  herein)  of  this  act  shall  apply  to  all  eases  in  which  the  tax 
remains  unpaid  at  the  date  of  the  passage  hereof.  (Acts  1909,  p.  798.) 

§  744.  Application  of  Act  to  Administrators  Appointed  Prior  to  Passage. 
Sec.  31.  The  provisions  of  section  five  (section  thirteen  herein)  of  this 
act  shall  not  apply  to  executors,  administrators  or  trustees  appointed  prior 
to  the  •  passage  hereof,  but  such  executors,  administrators  or  trustees  shall 
remain  subject  to  the  provisions  of  said  section  thirteen  prior  to  its  amend- 
ment. (Acts  1909,  p.  798.) 

§  745.    Proceedings  to  Determine  Taxes  on  Real  Estate. 

Sec.  32.  Upon  the  petition  of  the  treasurer  and  receiver  general  the  pro- 
bate court  shall,  after  such  notice  to  the  owners  of  any  real  estate  or 
separate  parcel  thereof  as  said  court  shall  order,  determine  the  amount  of 
taxes  imposed  by  chapter  four  hundred  and  twenty-five  of  the  acts  of  the 
year  eighteen  hundred  and  ninety-one  and  acts  in  amendment  thereof  and 
in  addition  thereto,  and  by  chapter  fifteen  of  the  Revised  Laws  and  acts  in 
amendment  thereof  and  in  addition  thereto,  and  by  chapter  five  hundred 
and  sixty-Three  of  the  acts  of  the  year  nineteen  hundred  and  seven  and 
acts  in  amendment  thereof  and  in  addition  thereto,  which  have  become 


MASSACHUSETTS  STATUTE.  527 

payable,  and  of  interest  on  the  said  taxes,  for  which  such  real  estate  or 
separate  parcel  thereof  is  charged  with  a  lien.  After  such  determination 
the  treasurer  and  receiver  general  may  collect  the  said  taxes  and  interest 
by  sale  in  the  manner  provided  by  part  II  of  chapter  four  hundred  and 
ninety  of  the  acts  of  the  year  nineteen  hundred  and  nine  for  the  collection 
of  taxes  by  sale  by  a  collector  of  taxes,  so  far  as  the  provisions  of  the 
said  statute  are  applicable.  (Acts  1910,  p.  379,  approved  April  25,  1910.) 

§  746.     Bight  to  Inspect  Papers  and  Records,  and  Use  Them  in  Legal  Pro- 
ceedings. 

Sec.  33.  Papers,  copies  of  papers,  affidavits,  statements,  letters  and  other 
information  and  evidence  filed  with  the  tax  commissioner  in  connection 
with  the  assessment  of  taxes  upon  legacies  and  successions,  except  inven- 
tories filed  with  the  tax  commissioner  under  the  provisions  of  section  thir- 
teen of  part  IV  of  chapter  four  hundred  and  ninety  of  the  act  of  the  year 
nineteen  hundred  and  nine,  as  amended  by  section  five  of  chapter  five 
hundred  and  twenty-seven  of  the  acts  of  the  year  nineteen  hundred  and 
nine,  shall  be  open  only  to  the  inspection  of  persons  charged  or  likely  to 
become  charged  with  the  payment  of  taxes  in  the  case  in  which  such  paper, 
copy,  affidavit,  statement,  letter  or  other  information  or  evidence  is  filed, 
or  their  representatives,  and  to  the  tax  commissioner,  his  deputy,  assistants 
and  clerks,  and  such  other  officers  of  the  commonwealth  and  other  persons 
as  may,  in  the  performance  of  their  duties,  have  occasion  to  inspect  the 
same  for  the  purpose  of  assessing  or  collecting  taxes.  Nothing  in  this  act 
shall  be  construed  as  limiting  the  duties  imposed  upon  the  supervisors  of 
assessors  by  section  six  of  part  III  of  chapter  four  hundred  and  ninety  of 
the  acts  of  the  year  nineteen  hundred  and  nine,  or  as  prohibiting  the  use 
of  such  papers,  copies,  affidavits,  statements,  letters  and  other  information 
and  evidence  in  legal  proceedings  involving  the  assessment,  collection  or 
abatement  of  taxes.  (Acts  1911,  p.  327,  approved  April  29,  1911.) 


523  INHERITANCE  TAXATION. 

CHAPTER  XXXVII. 
MICHIGAN  STATUTE. 

(Public  Acts  of  1899,  p.  £85;  Public  Acts  of  1903,  p.  271;  Public  Acts  of  1907, 
p.  199;  Public  Acts  of  1909,  pp.  71,  700;  Public  Act»  of  1911,  p.  101.) 

§  747.  Transfers  Subject  to  Tax — Rates. 

§  748.  Transfers  Exempt  from  Taxation. 

§  749.  Proceedings  to  Enforce  Tax — Foreclosure  of  Lien — Redemption. 

§  750.  Interest  and  Discount. 

§  751.  Collection  of  Tax  by  Executor — Sale  or  Mortgage  of  Property. 

§  752.  Refund  of  Tax  Erroneously  Paid. 

§  753.  Payment  of  Tax  in  Case  of  Reversions  or  Remainders. 

§  754.  Bequests  to  Executor  in  Lieu  of  Commissions. 

§  756.  Transfer  or  Delivery  of  Stock,  Deposits  or  Securities — Notice. 

§  756.  Jurisdiction  of  Probate  Court — Petition  for  Letters. 

§  757.  Appointment  of  Appraisers — Valuation  of  Property. 

§  758.  Notice  of  Appraisement — Proceedings  and  Expenses. 

§  759.  Report  of  Appraiser — Assessment  of  Tax. 

§  760.  Notice  to  Attorney  General  of  Delinquencies — Proceedings  to  Collect 

Tax. 

§  761.  Receipts — Transfer  Tax-book. 

§  762.  Fees  of  County  Treasurer. 

§  763.  Record  to  be  Kept  by  Probate  Judge. 

§  764.  Copies  of  Letters  and  Forms — Report  of  Register  of  Deeds — Property 

of  Nonresident. 

§  766.  Report  of  County  Treasurer — Examiners  of  Records. 

§  766.  Payment  to  State  Treasurer — Application  of  Funds. 

§  767.  Definitions  of  Terms. 

§  768.  Time  When  Statute  Takes  Effect. 

§  747.    Transfers  Subject  to  Tax— Rates. 

(Sec.  1.)  That  after  the  passage  of  this  act  a  tax  shall  be  and  is  hereby  im- 
posed upon  the  transfer  of  any  property,  real  or  personal,  of  the  value  of  one 
hundred  dollars  or  over,  or  of  any  interest  therein  or  income  therefrom,  in 
trust  or  otherwise,  to  persons  or  corporations  not  exempt  by  law  from  taxation 
on  real  or  personal  property,  in  the  following  cases: 

When  the  transfer  is  by  will  or  by  the  intestate  laws  of  this  state  from  any 
person  dying  seised  or  possessed  of  the  property  while  a  resident  of  this  state; 

When  the  transfer  is  by  will  or  intestate  law  of  property  within  the  state, 
and  the  decedent  was  a  nonresident  of  the  state  at  the  time  of  his  death; 

When  the  transfer  is  of  property  made  by  a  resident  or  by  nonresident,  when 
such  nonresident's  property  is  within  this  state,  by  deed,  grant,  bargain,  sale 
or  gift  made  in  contemplation  of  the  death  of  the  grantor,  vendor  or  donor  or 
intended  to  take  effect,  in  possession  or  enjoyment  at  or  after  such  death. 
Such  tax  shall  also  be  imposed  when  any  such  person  or  corporation  becomes 


MICHIGAN  STATUTE.  529 

beneficially  entitled  in  possession  or  expectancy  to  any  property  or  the  income 
thereof  by  any  such  transfer,  whether  made  before  or  after  the  passage  of  this 
act.  Such  tax  shall  be  at  the  rate  of  five  per  cent  upon  the  clear  market  value 
of  such  property,  except  as  otherwise  prescribed  in  the  next  section.  (Pub. 
Acts  1899,  p.  285;  Pub.  Acts  1903,  p.  277.) 

§  748.     Transfers  Exempt  from  Taxation. 

(Sec.  2.)  When  the  property  or  any  beneficial  interest  therein  passes  by  any 
such  transfer  to  or  for  the  use  of  one  or  more  of  the  following  named  persons: 
Father,  mother,  husband,  wife,  child,  brother,  sister,  wife  or  widow  of  a  son, 
or  the  husband  of  a  daughter,  or  to  or  for  the  use  of  any  child  or  children 
adopted  as  such  in  conformity  with  the  laws  of  this  state  of  the  decedent, 
grantor,  donor,  or  vendor  or  to  or  for  the  use  of  any  persons  to  whom  any  such 
decedent,  grantor,  donor,  or  vendor,  for  not  less  than  ten  years  prior  to  such 
transfer  stood  in  the  mutually  acknowledged  relation  of  a  parent,  or  to  or 
for  the  use  of  any  lineal  descendant  of  such  decedent,  grantor,  donor  or  vendor, 
such  transfer  of  property  shall  not  be  taxable  under  this  act,  unless  it  is  per- 
sonal property  of  the  clear  market  value  of  two  thousand  dollars  or  over,  in 
which  case  the  entire  transfer  shall  be  taxed  under  this  act  at  the  rate  of  one 
per  cent  upon  the  clear  market  value  thereof.  The  exemptions  of  sections  one 
and  two  of  this  act  shall  apply  and  be  granted  to  each  beneficiary's  interest 
therein,  and  not  to  the  entire  estate  of  a  decedent.  (Pub.  Acts  1899,  p.  285; 
Pub.  Acts  1903,  p.  278.) 

§  749.    Proceedings  to  Enforce  Tax — Foreclosure  of  Lien — Redemption. 

(Sec.  3.)  Every  such  tax  and  the  interest  thereon  herein  provided  for  shall 
be  and  remain  a  lien  upon  the  property  transferred  until  paid,  and  the  person 
to  whom  the  property  is  so  transferred  and  the  administrator,  executor,  and 
trustee  of  every  estate  so  transferred,  shall  be  personally  liable  for  such  tax 
until  its  payment;  except  that  the  executor  or  administrator  shall  not  be  per- 
sonally liable  for  the  tax  upon  a  reversion  or  remainder  consisting  of  real 
estate  where  the  election  provided  for  in  section  seven  is  made.  The  tax  shall 
be  paid  to  the  treasurer  of  the  county  in  which  the  probate  court  has  jurisdic- 
tion as  herein  provided,  and  said  treasurer  shall  make  out,  upon  forms  pre- 
scribed by  the  auditor  general,  receipts  in  duplicate,  and  immediately  send 
the  same  to  the  auditor  general,  and  accompany  them  with  the  amount  re- 
ceived in  funds  by  law  receivable  at  the  state  treasury.  It  shall  then  be  the 
duty  of  the  auditor  general  to  charge  the  treasurer  so  receiving  the  tax  with 
the  amount  thereof  and  credit  him  with  the  payment  of  same  to  state  treas- 
urer, and  in  case  the  determination  of  said  tax  and  said  receipt  are  believed 
to  be  in  accordance  with  law,  seal  said  receipts  with  the  seal  of  his  office  and 
countersign  the  same  and  return  one  of  them  to  the  county  treasurer  who  shall 
file  and  preserve  it  in  his  office  and  immediately  send  the  other  of  such  re- 
ceipts to  the  judge  of  probate  who  shall  file  and  preserve  it  in  his  office,  where- 
upon it  shall  be  a  voucher  in  settlement  of  the  accounts  of  the  executor,  admin- 
istrator, or  trustee  of  the  estate  upon  which  the  tax  is  paid.  At  the  same 
time  the  auditor  general  shall  send  to  the  county  treasurer  the  state  treasurer's 
receipt,  countersigned  as  required  by  lav>-,  showing  payment  of  tax.  The  seal- 
84 


530  INHERITANCE   TAXATION. 

ing  and  countersigning  of  said  receipts  shall  not  prejudice  the  right  of  the 
state  to  a  review  of  the  determination  fixing  the  tax.  The  receipts  issued 
under  this  section  shall  show  whether  the  amount  paid  is  a  payment  of  the 
tax  upon  any  beneficial  interest  or  upon  the  entire  transfer.  But  no  executor, 
administrator  or  trustee  of  an  estate,  in  settlement  of  which  a  tax  is  due 
under  the  provisions  of  this  act,  shall  be  discharged  and  the  estate  or  trust 
closed  by  a  decree  of  the  court,  unless  there  shall  be  produced  a  receipt  signed 
by  the  county  treasurer  and  sealed  and  countersigned  by  the  auditor  general, 
or  a  copy  thereof,  certified  by  the  county  treasurer,  or  unless  payment  of  the 
tax  has  been  deferred  as  prescribed  by  section  seven  of  this  act.  When  any 
such  tax  shall  be  paid  to  the  county  treasurer,  he  shall,  in  addition  to  the 
duplicate  receipts  required  to  be  issued  upon  the  form  prescribed  by  the  auditor 
general,  give  the  executor,  administrator,  trustee,  or  other  person  paying  the 
tax,  a  simple  receipt  for  the  amount  received.  All  taxes  imposed  by  this  act 
shall  accrue  and  be  due  and  payable  at  the  time  of  transfer,  which  is  the 
date  of  death;  provided,  however,  that  taxes  upon  the  transfer  of  any  estate, 
property  or  interest  therein  limited,  conditioned,  dependent  or  determinable 
upon  the  happening  of  any  contingency  or  future  event,  by  reason  of  which 
the  clear  market  value  thereof  cannot  be  ascertained  at  the  time  of  the  trans- 
fer as  herein  provided,  shall  accrue  and  become  due  and  payable  when  the 
persons  or  corporations  beneficially  entitled  thereto  shall  come  into  actual 
possession  or  enjoyment  thereof. 

All  proceedings  to  enforce  any  lien  now  existing,  or  which  may  hereafter 
accrue,  against  any  property  under  this  act,  shall  be  instituted  by  informa- 
tion, in  the  name  of  the  people  of  the  state  of  Michigan,  addressed  to  the  cir- 
cuit court  in  chancery  of  the  county  in  which  such  property  is  situated.  It 
shall  be  signed  by  the  attorney  general  and  need  not  be  otherwise  verified,  and 
shall  be  equivalent  to  a  bill  in  chancery  to  enforce  the  lien  against  such  prop- 
erty. And  in  such  proceedings,  all  persons  owning  such  property  or  any  in- 
terest therein  as  shown  by  the  record  in  the  office  of  the  register  of  deeds, 
or  by  the  records  of  the  probate  court,  at  the  time  of  the  commencement  of 
the  proceedings,  shall  be  made  parties  to  such  action,  and  all  other  persons 
having  any  rights  or  interest  in  said  property,  may  make  themselves  parties 
thereto,  on  motion  to  the  court,  and  notice  to  complainant,  and  may  file  their 
intervening  or  cross-bills,  or  answers  claiming  the  benefit  of  cross-bills,  and 
notices  of  lis  pendens  therein.  Intervening  or  cross-bills  shall  be  made  on 
oath. 

Such  information  shall  show  the  name  of  the  deceased,  date  of  his  death, 
the  place  of  residence  at  the  time  of  death,  the  county  in  which  his  estate  was 
probated,  the  description  of  the  property  transferred,  whether  by  will  or  under 
the  intestate  laws,  and  against  which  the  lien  exists,  the  name  of  the  person 
or  persons  to  whom  it  was  transferred,  the  amount  of  taxes  determined  by  the 
probate  court  upon  the  transfer,  the  date  of  the  determination  and  whether 
the  property  is  owned  by  the  person  or  persons  to  whom  it  was  transferred 
by  will  or  under  the  intestate  laws  or  by  a  subsequent  purchaser,  naming  him. 
Such  information  shall  also  show  that  the  taxes  determined  upon  the  transfer 
of  such  property  have  not  been  paid  and  the  amount  of  interest  due  thereon 
upon  the  date  of  the  filing  of  the  information.  In  those  cases  in  which  tha 


MICHIGAN  STATUTE.  531 

property  upon  which  the  lien  exists  is  owned  by  the  person  or  persons  to  whom 
it  was  transferred  by  will  or  under  the  intestate  laws,  the  prayer  for  relief 
shall  be  that  the  court  determine  the  amount  due;  that  the  defendant  pay  to 
the  county  treasurer  of  the  county,  in  which  the  estate  was  probated,  for  and 
in  behalf  of  the  state  of  Michigan,  whatever  sum  shall  appear  to  be  due,  to- 
gether with  the  costs  of  the  proceeding,  and  that  in  default  of  such  payment 
the  property  upon  which  the  lien  exists,  may  be  sold  in  the  manner  herein  pro- 
vided, to  satisfy  such  taxes,  interest  and  cost.  In  those  cases  in  which  the 
property  upon  which  the  lien  exists  is  owned  by  a  subsequent  purchaser,  the 
prayer  for  relief  shall  be  that  the  court  determine  the  amount  due  and  that 
the  property  upon  which  the  lien  exists  may  be  sold  in  the  manner  herein  pro- 
vided to  satisfy  such  taxes,  interest  and  costs  of  the  proceeding.  Such  in- 
formation may  contain  such  other  and  further  allegations  and  prayers  as  are 
deemed  material  and  permitted  by  the  rules  and  practice  of  the  court. 

A  certified  copy  of  the  order  of  determination  of  the  inheritance  tax,  for 
which  the  lien  exists,  certified  by  either  the  judge  or  register  of  probate  of  the 
court  that  determined  the  tax  or  by  the  auditor  general,  may  be  attached  to 
such  information,  and  when  so  attached  shall  be  considered  a  part  thereof  and 
shall  be  prima  facie  evidence  of  the  determination  of  the  inheritance  tax  and 
the  accruing  of  the  lien  against  such  property.  Also  a  certificate  of  the 
auditor  general  stating  that  the  inheritance  tax,  or  any  part  thereof  deter- 
mined upon  the  transfer  of  such  property  upon  which  the  lien  exists,  has  not 
been  paid,  may  be  attached  to  such  information  and  when  so  attached  shall 
be  considered  a  part  thereof  and  shall  be  prima  facie  evidence  of  the  nonpay- 
ment of  such  an  amount  of  the  tax  and  interest  as  shown  to  be  unpaid  by  such 
certificate. 

All  provisions  of  law  now  existing  relative  to  the  service  of  process  in 
chancery  cases,  and  all  provisions  of  law  now  existing  relative  to  all  matters 
of  procedure  and  practice  in  chancery  cases,  not  otherwise  herein  specifically 
provided  for,  shall  govern  in  so  far  as  they  are  applicable  in  all  proceedings 
instituted  under  this  act. 

If  any  infant,  insane,  or  otherwise  mentally  incompetent  person  has  any 
interest  in  the  property  upon  which  the  lien  exists,  service  of  process  shall  be 
made  upon  such  a  person  in  the  same  manner  and  with  the  same  effect  as  upon 
persons  not  under  any  disability,  whether  such  infant,  insane,  or  otherwise 
mentally  incompetent  person  is  within  or  without  the  jurisdiction. 

After  the  issuing  and  service  of  process  against  the  infant,  insane,  or  other- 
wise incompetent  person,  a  guardian  ad  litem  may  be  appointed  for  such  in- 
fant, insane,  or  otherwise  incompetent  person  by  the  court  upon  motion  of 
the  attorney  general,  or  such  guardian  ad  litem  may  be  appointed  by  the  court 
upon  the  request  of  such  infant,  and  in  case  of  an  insane  or  otherwise  incom- 
petent person,  at  the  request  of  such  person's  general  guardian. 

If  upon  the  hearing  of  said  cause  it  shall  appear  that  the  inheritance  taxes 
and  interest,  or  either,  upon  the  transfer  of  the  property  upon  which  the  lien 
exists  have  not  been  paid,  the  court  shall  decree  the  amount  of  taxes  and 
interest  thereon  found  to  be  due,  together  with  such  costs  as  are  now  allowed 
by  law  in  chancery  cases  as  the  court  shall  award,  to  be  paid  by  the  person 
or  persons  owning  the  property,  or  any  interest  therein,  within  three  months 


532  INHERITANCE  TAXATION. 

after  the  entry  of  said  decree  and  that  in  default  of  such  payment  that  the 
property  upon  which  the  lien  exists,  be  sold  to  satisfy  such  taxes,  interest  and 
costs.  If  it  shall  appear  that  the  person  or  persons  to  whom  was  transferred 
the  property  by  will  or  under  the  intestate  laws,  have  parted  with  their  interest 
therein  before  the  institution  of  the  proceedings  herein  provided  for,  and  that 
such  property  is  owned  by  a  subsequent  purchaser,  the  court  shall  decree  that 
such  property  be  sold  to  satisfy  such  taxes,  interest  and  costs,  unless  the  owner 
thereof  satisfies  such  taxes,  interest  and  costs  within  three  months  from  the 
entry  of  such  decree;  provided,  that  in  those  cases  in  which  it  shall  appear 
that  two  or  more  pieces  or  parcels  of  land  were  transferred  by  will  or  under 
the  intestate  laws,  to  one  person,  and  that  such  person  has,  prior  to  the  insti- 
tution of  the  proceedings  herein  provided  for,  parted  with  either  or  all  of  said 
pieces  or  parcels  of  land  and  that  the  court  can  ascertain  from  the  order  of 
determination,  the  amount  of  inheritance  tax,  determined  upon  the  transfer 
of  each  piece  or  parcel  and  that  the  lien  against  all  of  said  pieces  or  parcels 
is  being  foreclosed  in  one  proceeding,  the  court  may  decree  the  sale  of  said 
piece  or  parcel,  to  satisfy  the  amount  of  tax  determined  upon  the  transfer  of 
said  piece  or  parcel,  together  with  the  interest  thereon  and  the  pro  rata  costs 
of  the  proceeding;  provided,  that  in  no  case  shall  any  such  property  be  sold 
to  satisfy  such  taxes,  interest  and  costs  within  three  months  after  the  entry 
of  such  decree;  provided  further,  that  if  the  person  or  persons  owning  such 
property  or  any  interest  therein,  his  heirs,  executors,  administrators,  or  any 
person  lawfully  claiming  from  or  under  him  or  them,  shall  within  six  months 
from  the  time  of  such  sale  redeem  the  entire  premises  sold,  by  paying  to  the 
register  of  deeds  in  whose  office  the  deed  is  deposited,  as  provided  by  the 
eleventh  subdivision  of  this  section,  for  the  benefit  of  such  purchaser,  his  exec- 
utors, administrators,  or  assigns,  the  sum  which  was  bid  therefor  at  the  time 
of  sale,  with  interest,  at  the  rate  of  six  per  cent  together  with  the  sum  of  one 
dollar  as  a  fee  for  the  care  and  custody  of  such  redemption  money,  and  the 
fee  paid  by  the  purchaser  for  recording  his  deed,  then  said  deed  shall  be  void 
and  of  no  effect,  but  in  case  any  distinct  lot  or  parcel  separately  sold  shall  bo 
redeemed  leaving  a  portion  of  the  premises  unredeemed,  then  such  deed  shall 
be  inoperative  merely  to  the  parcel  or  parcels  so  redeemed  and  to  those  por- 
tions not  so  redeemed  shall  remain  valid  and  of  full  effect. 

If  it  shall  appear  to  the  court  after  the  expiration  of  three  months  from  the 
date  of  entry  of  the  decree  from  a  certificate  of  the  county  treasurer  to  whom 
the  taxes,  interest  and  costs  were  to  be  paid,  attached  to  a  petition  of  the 
attorney  general  for  an  order  of  sale  of  such  property,  that  the  same  have 
not  been  paid,  he  shall  enter  an  order  directing  the  circuit  court  commissioner, 
or  some  other  person  duly  authorized  by  the  order  of  the  court,  to  sell  such 
property.  Such  sales  shall  be  at  public  vendue  between  the  hours  of  nine 
o'clock  in  the  morning  and  six  o'clock  in  the  evening  at  the  courthouse  or  at 
such  other  place  as  the  court  shall  direct,  within  sixty  days  from  the  date  of 
the  order  and  on  the  date  therein  specified:  Provided,  that  the  court  may,  if 
necessary,  by  further  order  adjourn  the  sale  from  time  to  time:  Provided 
further,  that  the  circuit  court  commissioner,  or  other  person  authorized  to 
make  such  sale,  may,  if  bids  are  not  received  equal  to  the  amount  of  taxes, 


MICHIGAN  STATUTE.  533 

interest  and  costs,  adjourn  the  sale  from  time  to  time.  But  in  no  case  shall 
such  sale  be  adjourned  for  more  than  sixty  days  at  any  one  time. 

Upon  receipt  of  a  certified  copy  of  the  order  of  sale  the  circuit  court  com- 
missioner, or  other  person  duly  authorized  by  the  order  of  the  court,  to  conduct 
such  sale,  shall  publish  the  same  in  some  newspaper  printed  in  the  county  or 
such  other  paper  as  the  court  may  direct,  once  in  each  week,  for  three  weeks 
in  succession:  Provided,  that  if  the  sale  is  adjourned  by  order  of  the  court, 
or  by  the  circuit  court  commissioner,  or  other  person  duly  authorized  by  the 
order  of  the  court,  to  conduct  such  sale  the  same  publication  shall  be  had  of 
the  order  or  notice  adjourning  the  sale  as  is  herein  provided  for  publishing 
the  order  of  sale:  Provided  further,  that  proof  of  such  publication  shall  be 
filed  with  the  register  in  chancery  before  the  sale. 

The  circuit  court  commissioner,  or  other  person  authorized  to  make  such  sale 
shall  make  and  file  a  report  of  the  same.  Such  report  shall  be  entitled  in  the 
court  and  cause  and  shall  be  certified  and  filed  with  the  register  in  chancery. 

Deeds  shall  thereupon  be  executed  by  such  circuit  court  commissioner,  or 
other  person,  making  such  sale,  specifying  the  names  of  the  parties  in  the  suit, 
the  date  of  the  determination  of  the  -inheritance  tax;  the  name  of  the  de- 
ceased, the  county  in  which  the  estate  was  probated,  with  a  description  of  the 
premises  and  the  amount  for  which  each  parcel  of  land  therein  described  was 
sold,  and  he  shall  indorse  upon  each  deed  when  the  same  shall  become  opera- 
tive, in  case  the  premises  are  not  redeemed  according  to  law.  Such  deed  or 
deeds  shall,  as  soon  as  practicable  and  within  twenty  days  after  such  sale,  be 
deposited  with  the  register  of  deeds  of  the  county  in  which  the  land  therein 
described  is  situated,  and  the  register  shall  endorse  thereon  the  time  the  same 
was  received  and  for  a  better  preservation  thereof,  shall  record  the  same  at 
length  in  a  book  to  be  provided  for  in  his  office  for  that  purpose,  and  shall 
index  the  same  in  the  regular  index  of  deeds,  and  the  fees  for  recording  same 
shall  be  paid  by  the  purchaser  and  be  included  among  the  other  costs  and  ex- 
penses. In  case  such  premises  or  any  parcel  thereof  shall  be  redeemed  the 
register  of  deeds  shall  write  on  the  face  of  such  record  the  word  "Redeemed," 
stating  at  what  date  such  entry  is  made  and  signing  such  entry  with  his  official 
signature.  Unless  the  premises  described  in  such  deed,  or  any  parcel  thereof, 
shall  be  redeemed  within  the  time  limited  for  such  redemption,  as  herein  pro- 
vided, such  deed  shall  thereupon  as  to  all  parcels  not  so  redeemed,  become 
operative  and  shall  vest  in  the  grantee  therein  named,  his  heirs  or  assigns  all 
the  right,  title  and  interest  therein  which  the  person  or  persons  received  therein 
either  from  the  deceased  by  reason  of  the  transfer  to  them  by  will  or  under 
the  intestate  laws,  or  as  subsequent  purchasers. 

The  proceeds  of  every  sale  herein  provided  for  shall  be  paid  to  the  treasurer 
of  the  county  wherein  the  estate  was  probated,  to  be  applied  to  the  discharge 
of  the  tax,  interest  and  costs,  and  if  there  be  any  surplus,  it  shall  be  brought 
into  court  for  the  use  of  the  defendant,  or  the  person  entitled  thereto,  subject 
to  the  order  of  the  court.  The  redemption  money  paid  to  the  register  of  deeds, 
shall  be  paid  to  the  persons  entitled  thereto  as  soon  as  practicable,  and  in  those 
cases  in  which  the  state  was  the  purchaser,  the  money  shall  be  paid  to  the 
treasurer  of  the  county  wherein  the  estate  was  probated,  and  if  there  be  any 
surplus  after  the  tax,  interest  and  costs  are  satisfied,  the  same  shall  be  brought 


534  INHERITANCE  TAXATION. 

into  court  for  the  use  of  the  defendant  or  the  person  entitled  thereto,  subject 
to  the  order  of  the  court. 

Upon  the  filing  of  the  information,  two  dollars  as  fees  shall  be  paid  to  the 
register  in  chancery,  which  ehall  be  in  full  of  all  register  fees  and  charges  in 
such  proceedings,  on  his  behalf.  The  circuit  court  commissioner,  or  other  per- 
son authorized  by  the  court  to  make  the  sale,  shall  be  entitled  to  the  following 
fees  and  no  others:  For  attending  sale  and  adjourning  sanre,  one  dollar;  for 
attending  sale  and  making  same,  one  dollar  and  fifty  cents;  mileage,  one  way, 
ten  cents  per  mile;  executing  deed  or  deeds  on  real  estate  sales,  twenty-five 
cents  for  each  deed  necessarily  executed;  making  report  of  sale  and  filing  same, 
one  dollar.  The  cost  of  publishing  any  legal  notices  herein  required  to  be 
published  shall  be  at  the  rate  of  seventy  cents  per  folio  for  the  first  insertion, 
and  thirty-five  cents  per  folio  for  each  subsequent  insertion.  The  fees  which 
are  provided  for  in  this  act,  shall  be  added  by  the  circuit  court  commissioner, 
or  other  person  duly  authorized  to  make  the  sale,  to  the  tax,  interest  and  costs 
awarded  by  the  court  as  charges  against  the  land.  (Pub.  Acts  1899,  p.  285; 
Pub.  Acts  1903,  p.  278;  Pub.  Acts  1907,  p.  199.) 

§  750.    Interest  and  Discount. 

(Sec.  4.)  If  in  any  case,  whether  such  transfer  shall  take  effect  prior  or 
subsequent  to  the  taking  effect  of  this  act,  such  a  tax  is  paid  within  twelve 
months  from  the  accruing  thereof,  a  discount  of  five  per  centum  shall  be 
allowed  and  deducted  therefrom.  If  such  tax  is  not  paid  within  eighteen 
months  from  the  accruing  thereof,  interest  shall  be  charged  and  collected 
thereon  at  the  rate  of  eight  per  cent  per  annum  from  the  time  the  tax  accrued, 
unless  by  reason  of  claims  made  upon  the  estate,  necessary  litigation  or  other 
unavoidable  cause  of  delay,  such  tax  cannot  be  determined  and  paid  as  herein 
provided,  in  which  case  interest  at  the  rate  of  six  per  cent  per  annum  shall 
be  charged  upon  such  tax  from  and  after  the  expiration  of  said  eighteen 
months  until  the  tax  is  determined,  or  could  be  determined,  and  after  the  de- 
termination, or  after  the  time  it  could  be  determined,  interest  at  eight  per  cent 
per  annum  shall  be  charged  until  the  date  of  the  payment  thereof.  In  all 
cases  where  payment  is  deferred  as  provided  in  section  seven  of  this  act,  in- 
terest shall  be  charged  at  the  rate  of  five  per  centum  per  annum  from  the 
accrual  of  the  tax  until  the  date  of  the  payment  thereof.  (Pub.  Acts  1899, 
p.  28G;  Pub.  Acts  1903,  p.  279;  Pub.  Acts  1907,  p.  206.) 

§  751.    Collection  of  Tax  by  Executor — Sale  or  Mortgage  of  Property. 

(Sec.  5.)  Every  executor,  administrator,  trustee  or  other  person  shall  have 
full  power  to  sell  or  mortgage  so  much  of  the  property  of  the  decedent  as  will 
enable  him  to  pay  such  tax  in  the  same  manner  as  he  might  be  entitled  by  law 
to  do  for  the  payment  of  the  debts  of  a  decedent  or  ward;  except  that  in  cases 
where  the  transfer  is  to  two  or  more  persons  in  common,  and  one  or  more  of 
them  shall  have  paid  his  proportion  of  such  tax,  such  executor,  administrator, 
trustee,  or  other  person  shall  sell  or  mortgage  only  the  interest  of  such  of  the 
persons  to  whom  the  property  was  transferred  as  have  not  paid  the  tax,  to 
pay  the  tax  due  upon  such  share  or  shares.  Any  such  administrator,  executor, 
trustee  or  other  person  having  in  charge  or  in  trust  any  legacy  or  property 


MICHIGAN  STATUTE.  535 

for  distribution  subject  to  such  tax,  shall  deduct  the  tax  therefrom;  and 
within  thirty  days  thereafter  shall  pay  over  the  same  to  the  county  treasurer 
as  herein  provided.  If  such  legacy  or  property  be  not  in  money,  he  shall  col- 
lect the  tax  thereon  as  determined  by  the  judge  of  probate  from  the  person 
entitled  thereto,  unless  such  tax  has  been  paid  to  the  county  treasurer.  He 
shall  not  deliver  or  be  compelled  to  deliver  any  specific  legacy  or  property  sub- 
ject to  tax  under  this  act  to  any  person  until  the  tax  assessed  thereon  has  been 
paid  to  him  or  to  the  county  treasurer.  If  any  such  legacy  shall  be  charged 
upon  or  payable  out  of  real  property  and  is  taxable  under  this  act,  the  dev- 
isee charged  with  the  payment  of  such  legacy  shall  deduct  such  tax  therefrom 
and  pay  it  to  the  county  treasurer  or  the  administrator,  executor  or  trustee. 
And  the  payment  thereof  shall  be  enforced  by  the  executor,  administrator  or 
trustee,  in  the  same  manner  as  payment  of  the  legacy  might  be  enforced,  or 
by  the  attorney  general  or  prosecuting  attorney  by  the  appropriate  legal  pro- 
ceeding. If  such  legacy  shall  be  given  in  money  to  any  such  person  for  a 
limited  period,  the  administrator,  executor,  trustee  or  other  person  shall  retain 
the  tax  upon  the  whole  amount,  but  if  not  in  money,  he  shall  make  such  appli- 
cation to  the  court  having  jurisdiction  of  an  accounting  by  him,  to  make  an 
apportionment,  if  the  case  require  it,  of  the  sum  to  be  paid  by  such  legatee 
and  for  such  further  order  relative  thereto  as  the  case  may  require.  (Pub. 
Acts  1899,  p.  287;  Pub.  Acts  1903,  p.  280.) 

§  752.    Refund  of  Tax  Erroneously  Paid. 

(Sec.  6.)  If  any  debt  shall  be  allowed  against  the  estate  of  a  decedent  after 
the  payment  of  any  legacy  or  distributive  share  thereof,  from  which  any  such 
tax  has  been  deducted  or  upon  which  it  has  been  paid  by  the  person  entitled 
to  such  legacy  or  distributive  share,  and  such  person  is  required  to  refund  the 
amount  of  such  debts  or  any  part  thereof,  an  equitable  proportion  of  the  tax 
shall,  upon  the  order  of  the  court,  be  paid  to  him  by  the  executor,  adminis- 
trator, trustee  or  other  person,  if  the  tax  has  not  been  paid  to  the  county 
treasurer.  When  any  amount  of  said  tax  shall  have  been  paid  erroneously 
into  the  county  treasury  by  reason  of  the  allowance  of  debts  or  otherwise,  it 
shall  be  lawful  for  the  auditor  general,  upon  satisfactory  proof  by  the  order 
or  certificate  of  the  proper  court  of  the  allowance  of  such  debts  or  of  the  re- 
versal, correction  or  alteration,  in  accordance  with  law,  of  the  order  fixing 
such  tax,  to  draw  his  warrant  upon  the  state  treasury  for  such  erroneous  pay- 
ment, to  be  refunded  to  the  executor,  administrator,  trustee,  person  or  persons 
entitled  to  receive  it,  and  charge  the  same  to  the  fund  which  receives  credit 
from  the  payment  of  taxes  under  the  provisions  of  this  act ;  provided,  however, 
that  all  applications  for  such  refunding  of  erroneous  tax  shall  be  made  within 
six  months  from  the  allowance  of  such  debts  or  the  reversal,  correction  or 
alteration  of  said  order.  (Pub.  Acts  1899,  p.  287;  Pub.  Acts  1903,  p.  280.) 

§  753.    Payment  of  Tax  in  Case  of  Reversions  or  Remainders. 

(Sec.  7.)  Any  person  or  corporation  beneficially  interested  in  the  reversion 
or  remainder  of  any  property  chargeable  with  a  tax  under  this  act,  and  exec- 
utors, administrators  and  trustees  thereof,  may  elect  within  one  year  from  the 
transfer  thereof  as  herein  provided,  not  to  pay  such  tax  until  the  person  or 


536  INHERITANCE   TAXATION. 

persons  beneficially  interested  therein  shall  come  into  the  actual  possession  or 
enjoyment  thereof.  If  it  be  personal  property,  the  person  or  persons  so  elect- 
ing shall  give  a  bond  to  the  state  in  the  penalty  of  three  times  the  amount  of 
such  tax,  with  such  sureties  as  the  judge  of  probate  of  the  proper  county  may 
approve,  conditioned  for  the  payment  of  such  tax  and  interest  thereon  at  such 
time  and  period  as  the  person  or  persons  beneficially  interested  therein  may 
come  into  the  actual  possession  or  enjoyment  of  such  property,  which  bond 
shall  be  executed  and  filed  and  a  full  return  of  such  property  upon  oath  made 
to  the  probate  court  within  one  year  from  the  date  of  the  transfer  thereof,  as 
herein  provided,  and  such  bond  must  be  renewed  every  five  years:  Provided, 
that  the  time  fixed  herein  for  making  such  election  may  be  extended  by  the 
court  in  its  discretion  for  a  period  not  to  exceed  two  years.  (Pub.  Acts  1899, 
p.  288;  Pub.  Acts  1903,  p.  281.) 

§  754.    Bequests  to  Executor  in  Lieu  of  Commissions. 

(Sec.  8.)  If  a  testator  bequeath  or  devise  his  property  to  one  or  more  exec- 
utors or  trustees  in  lieu  of  their  commissions  or  allowances,  to  an  amount 
exceeding  the  commissions  or  allowances  prescribed  by  law  for  an  executor  or 
trustee,  the  excess  in  value  of  the  property  so  bequeathed  or  devised  above  the 
amount  of  commissions  or  allowances  prescribed  by  law  shall  be  taxable  under 
this  act.  (Pub.  Acts  1899,  p.  288;  Pub.  Acts  1903,  p.  281.) 

§  755.     Transfer  or  Delivery  of  Stock,  Deposits  or  Securities — Notice. 

(Sec.  9.)  If  a  foreign  executor,  administrator  or  trustee  shall  assign  or  con- 
vey any  stock  or  obligation  in  this  state  standing  in  the  name  of  a  decedent, 
or  in  trust  for  a  decedent,  liable  to  any  such  tax,  the  tax  shall  be  paid  to  the 
treasurer  of  the  proper  county  on  the  transfer  thereof;  and  any  corporation, 
person  or  persons  having  control  over  any  such  assets,  shall  not  deliver  or 
transfer  the  same  to  any  person  or  corporation  other  than  an  executor,  admin- 
istrator, trustee  or  guardian  duly  qualified  under  the  laws  of  this  state,  until 
the  tax  to  which  the  same  is  liable  has  been  paid  as  provided  in  this  act.  No 
safe  deposit  company,  trust  company,  bank  or  other  institution,  person  or  per- 
sons holding  securities  or  assets  of  a  decedent  shall  deliver  or  transfer  the 
same  to  the  executors,  administrators,  or  legal  representatives  of  said  decedent 
or  their  assignees  unless  notice  of  the  time  and  place  of  such  intended  de- 
livery or  transfer  be  served  upon  the  county  treasurer  by  said  company,  bank, 
institution,  person  or  persons,  at  least  five  days  prior  to  the  said  delivery  or 
transfer.  And  it  shall  be  lawful  for  the  said  county  treasurer  and  is  hereby 
made  his  duty  personally  or  by  representative,  to  examine  said  securities  or 
assets  at  the  time  of  or  prior  to  such  delivery  or  transfer.  Failure  to  serve 
such  notice  or  to  allow  such  examination  on  the  delivery  or  transfer  herein 
prohibited,  shall  render  such  safe  deposit  company,  bank,  or  other  institution, 
person  or  persons  liable  to  the  payment  of  the  tax  due  or  to  become  due  upon 
said  securities  or  assets  in  pursuance  of  the  provisions  of  this  act.  (Pub.  Acts 
1899,  p.  288;  Pub.  Acts  1903,  p.  281.) 

§  756.     Jurisdiction  of  Probate  Court — Petition  for  Letters. 

(Sec.  10.)  The  probate  court  of  every  county  of  this  state  having  jurisdic- 
tion to  grant  letters  testamentary  or  of  administration  upon  the  estate  of 


MICHIGAN  STATUTE.  537 

a  decedent  whose  property  is  chargeable  with  any  tax  under  this  act,  or  to 
appoint  a  trustee  of  such  estate  or  any  part  thereof,  or  to  give  ancillary 
letters  thereon,  shall  have  jurisdiction  to  hear  and  determine  all  questions 
arising  under  the  provisions  of  this  act  and  to  do  any  act  in  relation 
thereto  authorized  by  law  to  be  done  by  a  judge  of  probate  in  other  matters 
or  proceedings  coming  within  his  jurisdiction,  and  if  two  or  more  probate 
courts  shall  be  entitled  to  exercise  any  such  jurisdiction,  the  judge  of 
probate  first  acquiring  jurisdiction  hereunder  shall  retain  the  same,  to  the 
exclusion  of  every  other  judge  of  probate.  Every  petition  for  ancillary 
letters  testamentary  or  ancillary  letters  of  administration  shall  set  forth 
a  true  and  correct  statement  of  all  the  decedent's  property  in  this  state  and 
the  value  thereof.  (Pub.  Acts  1899,  p.  289;  Pub.  Acts  1903,  p.  281.) 

§  757.    Appointment  of  Appraisers — Valuation  of  Property. 

(See.  11.)  The  judge  of  probate,  upon  the  application  of  any  interested 
party,  including  the  auditor  general  and  county  treasurers,  or  upon  his 
own  motion  shall,  as  often  as  and  whenever  occasion  may  require,  appoint 
a  competent  person  as  appraiser  to  fix  the  clear  market  value  at  the  time 
of  the  transfer  thereof  of  property  which  shall  be  subject  to  the  payment 
of  any  tax  imposed  by  this  act,  a  description  of  which  property  and  the 
names  and  residences  of  the  persons  to  whom  it  passes  shall  be  given  by 
the  judge  of  probate  to  such  appraiser.  If  the  property,  upon  the  transfer 
of  which  the  tax  is  imposed,  shall  be  an  estate,  income  or  interest  for  a 
term  of  years  or  for  life,  or  determinable  upon  any  future  or  contingent 
estate,  or  shall  be  a  remainder  or  reversion  or  other  expectancy,  real  or 
personal,  the  entire  property  or  fund  by  which  such  estate,  income  or  in- 
terest is  supported,  or  of  which  it  is  a  part,  shall  be  appraised  immediately 
after  such  transfer,  or  as  soon  thereafter  as  may  be  practicable,  at  the 
clear  market  value  thereof  as  of  that  date;  provided,  however,  that  when 
such  estate,  income  or  interest  shall  be  of  such  a  nature  that  its  clear 
market  value  cannot  be  ascertained  at  such  time,  it  shall  be  appraised  in 
like  manner  at  the  time  when  such  value  first  became  ascertainable.  The 
value  of  every  future  or  contingent  or  limited  estate,  income,  interest  or 
annuity,  dependent  upon  any  life  or  lives  in  being,  shall  be  determined  by 
the  rule,  method  or  standard  of  mortality  and  value  employed  by  the 
commissioner  of  insurance  in  ascertaining  the  value  of  policies  of  life  in- 
surance companies,  except  that  the  rate  of  interest  for  computing  the 
present  value  of  all  future  and  contingent  interests  or  estates  shall  be  five 
per  centum  per  annum.  The  commissioner  of  insurance  shall,  upon  request 
of  the  auditor  general,  prepare  such  tables  of  values,  expectancies  and 
other  matters  as  may  be  necessary  for  use  in  computing,  under  the  pro- 
visions of  this  act,  the  value  of  life  estates,  annuities,  reversions  and 
remainders,  which  shall  be  printed  and  furnished  by  the  auditor  general 
to  the  several  judges  of  probate  upon  request;  provided  further,  that  the 
clear  market  value  of  the  transfer  of  a  money  legacy,  presently  taxable, 
shall  for  the  purpose  of  this  act  be  taken  to  be  the  face  value  of  the  money 
at  the  date  of  death  of  decedent.  (Pub.  Acts  1899,  p.  289;  Pub.  Acts  1903,  p. 
282;  Pub.  Acts  1907,  p.  206.) 


53  S  INHERITANCE   TAXATION. 

§  758.    Notice  of  Appraisement — Proceedings  and  Expenses. 

(Sec.  12.  )  Every  such  appraiser  shall  forthwith  give  notice  by  mail  to 
all  such  persons  as  he  is  notified  by  the  judge  of  probate  are  interested  in 
the  property  to  be  appraised,  and  to  the  county  treasurer,  of  the  time  and 
place  when  he  will  appraise  the  property.  He  shall  at  such  time  and  place 
appraise  the  same  at  its  clear  market  value  as  herein  prescribed,  and  for 
that  purpose  said  appraiser  is  authorized  to  issue  subpoenas  to  compel  the 
attendance  of  witnesses  before  him,  and  to  take  the  evidence  of  such  wit- 
nesses under  oath  concerning  such  property  and  the  value  thereof,  and  he 
shall  make  report  thereof  of  any  of  such  value  in  writing  to  said  judge  of 
probate,  together  with  the  depositions  of  the  witnesses  examined  and  such 
other  facts  in  relation  thereto  and  to  the  said  matter  as  the  said  judge 
of  probate  may  order  and  require.  Every  appraiser  shall  be  reimbursed 
for  his  actual  and  necessary  traveling  and  other  expenses  and  shall  be  entitled 
to  three  dollars  per  day  for  every  day  actually  and  necessarily  employed  in  such 
appraisement.  The  fees  of  the  necessary  witnesses  shall  be  the  same  as 
those  now  paid  to  witnesses  subpoenaed  to  attend  a  court  of  record.  A 
statement  in  detail  of  such  compensation  and  disbursements  as  are  au- 
thorized by  this  section  shall  be  approved  by  the  judge  of  probate  and  paid 
by  the  county  treasurer  from  the  general  or  contingent  fund  of  the  county. 
(Pub.  Acts  1899, -p.  290;  Pub.  Acts  1903,  p.  283.) 

§  759.    Report  of  Appraiser — Assessment  of  Tax. 

"  (Sec.  13.)  The  report  of  the  appraiser  shall  be  filed  in  the  office  of  the 
judge  of  probate,  and  from  such  report  and  other  proof  relating  to  any 
such  estate  before  the  judge  of  probate,  the  judge  of  probate  shall  forth- 
with, as  of  course,  determine  the  clear  market  value  of  all  such  estates  as 
of  the  date  of  transfer,  and  the  amount  of  tax  to  which  the  same  is  liable, 
or  the  judge  of  probate  may  so  determine  the  clear  market  value  of  all 
such  estates  and1  the  amount  of  tax  to  which  the  same  are  liable,  without 
appointing  an  appraiser.  The  judge  of  probate  may,  and  shall  on  applica- 
tion of  the  attorney  general  or  auditor  general,  require  the  executor,  ad- 
ministrator, or  trustee  of  any  estate  to  file  with  him  an  itemized  statement 
or  petition  containing  itemized  statement,  under  oath,  of  the  personal  prop- 
erty and  real  property  within  his  knowledge  or  possession  or  under  his 
control  as  such  executor,  administrator  or  trustee,  which  statement  shall 
indicate  the  date  from  which  interest  and  dividends  were  due  and  unpaid 
upon  each  item  of  the  personal  estate,  together  with  the  rate  of  such  in- 
terest and  also  of  the  amount  and  character  of  any  encumbrances  upon 
such  real  estate  at  the  time  of  the  death  of  said  deceased,  and  other  data, 
such  as  debts,  expenses  of  administration  and  other  charges  which  con- 
stitute proper  deductions  in  reaching  a  taxable  remainder  under  the  pro- 
visions of  this  act.  The  judge  of  probate  before  determination  of  the  tax 
upon  the  estate  of  a  decedent  as  a  whole  is  made,  may  determine  the  tax 
upon  any  specific  legacy  or  devise,  or  upon  the  real  estate  of  a  decedent, 
and  may  authorize  and  direct  any  executor  or  administrator  to  pay  to  the 
county  treasurer  a  sum  in  gross  on  account  of  the  inheritance  tax  due  from 
the  estate  when  by  reason  of  claims  made  against  the  estate  litigation  or 


MICHIGAN  STATUTE.  539 

other  unavoidable  cause  of  delay  the  tax  cannot  be  determined  by  the  court 
within  eighteen  months  from  its  accrual,  but  the  five  per  centum  discount 
provided  in  section  four  of  this  act  shall  not  be  allowed  upon  this  gross 
sum.  The  judge  of  probate  in  the  order  determining  the  tax  upon  such 
estate  shall  state  the  amount  authorized  to  be  paid  in  gross  as  above  pro- 
vided and  the  date  of  such  order.  The  commissioner  of  insurance  shall,  on 
the  application  of  any  judge  of  probate,  or  the  auditor  general,  determine 
the  value  of  any  such  future  or  contingent  estate,  income  or  interest  lim- 
ited, contingent,  dependent,  or  determinable,  upon  the  life  or  lives  of 
persons  in  being,  upon  the  facts  contained  in  any  such  appraiser's  report, 
or  facts  stated  by  the  judge  of  probate,  and  certify  the  same  to  the  auditor 
general  or  the  judge  of  probate,  and  his  certificate  shall  be  prima  facie 
evidence  that  the  method  of  computation  adopted  therein  is  correct.  In 
case  the  state  shall  appeal  from  the  appraisement,  assessment,  or  determina- 
tion of  the  tax,  it  shall  not  be  necessary  to  give  any  bond.  The  judge  of 
probate  shall  immediately  give  notice  upon  the  determination  by  him  of 
the  value  of  any  estate  which  is  taxable  under  this  act,  and  of  the  tax  to 
which  the  same  is  liable,  to  each  heir,  legatee  or  devisee  or  his  attorney 
and  of  the  tax  assessed  upon  his  share  of  the  estate,  by  mailing  such 
notice,  postage  prepaid,  to  the  last  known  address  of  each  of  such  persons, 
or  his  attorney,  except  those  who  were  in  court  in  person  or  by  attorney 
at  the  time  the  tax  was  so  determined;  provided,  that  the  judge  of  probate 
shall,  upon  the  written  application  of  any  person  interested,  including  the 
attorney  general,  file  with  him  within  sixty  days  after  the  determination 
by  him  of  any  tax  under  this  act,  grant  a  rehearing  upon  the  matter  of 
determining  such  tax;  and  if,  on  such  rehearing,  he  shall  modify  his  former 
determination  he  shall  enter  an  order  redetermining  the  tax,  and  make  the 
necessary  entries  in  the  book  provided  for  in  section  seventeen  of  this  act, 
and  make  report  thereof  to  the  auditor  general  and  county  treasurer,  as 
provided  in  section  eighteen  of  this  act.  (Pub.  Acts  1899,  p.  291;  Pub. 
Acts  1903,  p.  283.) 

§  760.    Notice  to  Attorney  General  of  Delinquencies — Proceedings  to  Col- 
lect Tax. 

(Sec.  14.)  If  the  auditor  general  or  the  treasurer  of  any  county  shall 
have  reason  to  believe  that  any  tax  is  due  and  unpaid  under  this  act,  after 
the  refusal  or  neglect  of  the  persons  liable  therefor  to  pay  the  same,  he 
shall  notify  the  attorney  general  in  writing  of  such  failure  or  neglect,  and 
such  attorney  general  may  apply,  or  cause  the  prosecuting  attorney  of  the 
county  to  apply,  in  behalf  of  the  state,  to  the  probate  court  for  a  citation 
citing  the  persons  liable  to  pay  such  tax  to  appear  before  the  court  on 
a  day  specified,  not  more  than  three  months  after  the  date  of  such  citation, 
and  show  cause  why  the  tax  should  not  be  paid.  The  judge  of  probate 
upon  such  application,  and  whenever  it  shall  appear  to  him  that  any  such 
tax  accruing  under  this  act  has  not  been  paid  as  required  by  law,  shall 
issue  such  citation,  and  the  service  of  such  citation,  and  the  time,  manner 
and  proof  thereof  and  the  hearing  and  determination  thereon,  and  the 
enforcement  of  the  determination  or  order  made  by  the  judge  of  probate 


540  INHERITANCE   TAXATION. 

shall  conform  to  the  practice  of  the  probate  court  in  like  cases  made  and 
provided  for  the  service  of  citations  out  of  the  probate  court,  and  the  hear- 
ing and  determination  thereon  and  its  enforcement,  so  far  as  the  same  may 
be  applicable.  In  all  cases  where  an  estate  has  been  declared  closed  with- 
out fixing  or  payment  of  the  tax  upon  the  transfers  therein,  and  the  at- 
torney general  shall  believe  such  transfers  to  be  subject  to  a  tax  and  real 
estate  in  said  estate  to  be  subject  to  a  lien  thereof  and  shall  contemplate  the 
institution  of  proceedings  for  the  fixing  and  enforcing,  or  the  enforcing  of 
the  same  when  it  has  been  fixed,  he  may  in  his  discretion  file  with  the  register 
of  deeds  of  the  county  a  notice  setting  forth  such  fact,  together  with  a  de- 
scription of  the  real  estate  claimed  to  be  subject  to  the  same  which  shall 
operate  with  the  same  force  and  effect  as  a  lis  pendens  under  existing  statutes ; 
provided,  that  the  failure  to  file  such  notice  shall  not  in  any  manner  prejudice 
the  rights  of  the  state.  The  judge  of  probate  or  the  probate  clerk  or  register 
shall,  upon  the  request  of  the  attorney  general,  prosecuting  attorney,  or 
treasurer  of  the  county,  furnish  one  or  more  transcripts  of  such  decree 
which  shall  be  docketed  and  filed  by  the  county  clerk  of  any  county  of  the 
state  without  fees,  in  the  same  manner  and  with  the  same  effect  as  pro- 
vided by  law  for  filing  and  docketing  transcripts,  judgments  and  decrees  of 
circuit  courts  in  this  state.  As  a  cumulative  remedy  for  the  collection  of 
the  tax,  the  state  may  proceed  by  an  action  of  assumpsit  in  any  court  of 
competent  jurisdiction.  Whenever  the  probate  judge  shall  issue  a  citation 
and  take  the  proceedings  specified  in  this  section,  he  shall  certify  such 
fact  to  the  county  treasurer,  together  with  an  itemized  bill  of  all  expenses 
incurred  for  the  services  of  such  citation,  and  other  lawful  disbursements 
not  otherwise  paid,  and  thereupon  the  county  treasurer  shall  pay  the  same 
from  the  general  or  contingent  fund  of  the  county.  In  all  proceedings  to 
which  any  county  treasurer,  or  the  auditor  general,  is  cited  to  appear  under 
sections  eleven  and  twelve  of  this  act  and  all  proceedings  arising  or  in- 
stituted hereunder,  the  attorney  general  shall  represent  the  interests  of  the 
state  therein,  the  compensation  and  expenses  of  necessary  assistants  and 
the  expenses  of  the  said  attorney  general  to  be  paid  after  approval  by  the 
attorney  general  on  the  warrant  of  the  auditor  general  out  of  the  general 
fund  in  the  state  treasury.  (Pub.  Acts  1899,  p.  291;  Pub.  Acts  1903,  p. 
284.) 

§  761.    Receipts — Transfer  Tax-book. 

(Sec.  15.)  Any  person  shall,  upon  the  payment  of  the  sum  of  fifty  cents 
to  the  county  treasurer,  be  entitled  to  a  certified  copy  of  the  receipt  issued 
by  the  county  treasurer  under  section  three  of  this  act  for  the  payment  of 
any  tax  under  this  act,  which  receipt  shall  designate  upon  what  real  prop- 
erty, if  any,  such  tax  shall  have  been  paid,  by  whom  paid,  and  whether  in 
full  of  such  tax.  Such  receipts  may  be  recorded  in  the  office  of  the  register 
of  deeds  of  the  county  in  which  such  property  is  situated,  in  a  book  to  be 
kept  by  him  for  that  purpose,  which  shall  be  labeled  "Transfer  Tax."  (Pub. 
Acts  1899,  p.  292;  Pub.  Acts  1903,  p.  286.) 


MICHIGAN  STATUTE.  541 

§  762.     Fees  of  County  Treasurer. 

(Sec.  16.)  The  treasurer  of  each  county,  except  in  counties  where  the 
treasurer  is  paid  a  salary  in  lieu  of  fees,  shall  be  allowed  on  each  and  all 
taxes  paid  and  accounted  for  by  him  under  this  act  one  per  centum.  Such 
fees  shall  be  in  addition  to  the  fees  or  compensation  now  allowed  by  law,  to 
such  officers,  and  shall  be  paid  out  of  the  general  fund  or  contingent  fund 
of  the  different  counties.  (Pub.  Acts  1899,  p.  292;  Pub.  Acts  1903,  p.  286.) 

§  763.    Record  to  be  Kept  by  Probate  Judge. 

(Sec.  17.)  The  auditor  general  shall  furnish  to  each  judge  of  probate  a 
book,  which  shall  be  a  public  record,  in  which  he  shall  enter  a  formal  order 
containing  the  name  of  every  decedent  upon  whose  estate  letters  of  ad- 
ministration or  letters  testamentary  or  ancillary  letters  have  issued,  the 
date  of  death,  and  place  of  residence  at  the  time  of  death  of  such  decedent, 
the  names,  places  of  residence  and  relationship  to  him  of  his  heirs  at  law, 
in  case  he  died  intestate  or  left  estate  not  disposed  of  by  will;  the  names, 
places  of  residence,  and  relationship  to  him  of  the  legatees  and  devisees  in 
the  will  of  the  decedent,  in  case  he  died  testate,  the  ages  of  all  life  tenants 
and  beneficiaries  under  life  estates,  the  clear  market  value  of  his  real  and 
personal  property,  the  clear  market  value  of  the  property,  real  and  per- 
sonal, passing  to  each  heir,  legatee  and  devisee,  and  the  clear  market  value 
of  annuities,  life  estates,  terms  of  years,  and  other  property  of  such  de- 
cedent, or  given  by  him  in  his  will  and  otherwise,  as  fixed  and  determined 
by  the  judge  of  probate,  and  the  amount  of  tax  assessed  thereon,  and  the 
amount  of  tax  assessed  on  the  share  of  each  heir,  legatee  and  devisee,  when 
from  the  records  of  the  court  or  the  testimony  given  there  appears  to  be 
property  in  such  estate  liable  to  tax  under  this  act;  provided,  the  descrip- 
tion of  no  real  estate  need  be  given  except  such  as  is  taxable  under  this 
act,  and  a  sufficiently  definite  description  shall  be  given  to  fully  identify 
such  taxable  real  estate  and  the  persons  to  whom  the  several  parcels  are 
devised.  He  shall  also  enter  in  said  book  the  name,  date  of  death,  and 
place  of  residence  at  time  of  death  of  every  decedent,  grantor,  vendor  or 
donor  who  has  made  a  transfer  of  property  in  contemplation  of  death  or 
intended  to  take  effect  in  possession  of  enjoyment  at  or  after  his  death, 
subject  to  tax  under  this  act;  the  name  and  residence  of  the  grantee, 
vendee  or  donee  and  his  relationship  to  the  grantor,  vendor  or  donor,  the 
clear  market  value  as  determined  by  the  judge  of  probate  of  the  property 
so  transferred  by  him  and  the  tax  determined  by  the  court  payable 
thereon.  These  entries  shall  be  made  from  data  contained  in  the  papers 
filed  in  the  probate  court  and  testimony  taken  in  any  proceedings  relating 
to  the  estate  of  the  decedent.  The  judge  of  probate  shall  also  enter  in 
such  book  the  amount  of  the  real  and  personal  property  of  such  decedent 
as  shown  by  the  inventory  thereof  when  made  and  filed  in  his  office.  In 
case  the  judge  of  probate  shall  determine  the  amount  of  tax  to  be  paid  upon 
any  specific  legacy  or  devise  or  upon  the  real  estate  of  a  decedent  before 
the  determination  of  the  tax  by  him  upon  the  estate  as  a  whole,  only  such 
entries  need  be  made  in  such  book  in  that  particular  case  as  refer  to  such 
legacy  or  devise  or  real  estate,  but  it  shall  be  distinctly  stated  in  said  book 


542  INHERITANCE   TAXATION. 

that  it  is  but  a  partial  determination  by  the  judge  of  probate  of  the  tax 
due  from  the  estate.  Whenever  the  determination  of  the  tax  in  such  estate 
by  the  judge  of  probate  is  general  or  final,  the  deductions  made  by  the 
judge  of  probate  from  the  full  value  of  the  estate  shall  be  particularly 
specified,  so  that  the  several  reasons  for  the  deductions  made  shall  clearly 
appear  upon  the  record;  such  record  so  required  to  be  furnished  by  the 
auditor  general  shall  be  in  the  following  form,  and  shall  be  of  such  size 
and  so  arranged  as  he  shall  determine  will  best  meet  the  requirements  of 
this  act: 

Abstract  of  Taxable  Inheritances.     Vol.  No Page    Form  of  record. 

No 

State  of  Michigan. 

The  Probate  Court  for  the  County  of 

At  a  session  of  said  court  held  at ,  in  said  county,  the  ....  day 

of   ,  A.  D.  19 

Present,  The  Honorable ,  Probate  Judge. 

In  the  Matter  of  the  Inheritance  Tax  upon  Transfers  in  the   Estate   of 
,  Deceased. 

In  this  matter    it  being  represented  to  me  and  appearing  that  the  said 

deceased  was,  at  the  time  of  his  death  on  the    ....    day  of    ,  a 

resident  of ,  and  possessed  of  property  the  transfer  of  which  or 

some  interest  or  estate  therein  is  taxable  under  the  inheritance  tax  law 

(act  188  of  the  public  acts  of  1899  and   of  1903) ;  that   

of ,  was  duly  and  regularly  appointed of  the  said  estate 

and   ,  and  that  as  appears  from  the  inventory  on  file  in  this  court, 

the  amount  of  property  belonging  to  said  estate  is  stated  to  be  as  follows: 
Personal  property,  $ ;  real  property,  $ 

It  further  appears  and  I  hereby  find  that  the  debts  of  said  deceased 
owing  at  the  time  of  his  death  (exclusive  of  interest  accruing  thereafter) 

amount  to   $ ;    that   the   funeral  expenses  of  said   deceased   amount   to 

$ ;   and  that  the  expenses  of  administration  of  the  estate  of  said 

decedent  (exclusive  of  all  items  of  disbursement  for  repairs  to  buildings 
or  other  property  belonging  to,  or  taxes  accruing  after  death,  upon  the 
estate  of  said  deceased,  all  allowances  for  the  support  of  widow  and 
children  of  said  deceased,  expenses  incurred  in  contesting  the  will  of  said 
deceased,  and  other  items  of  disbursements  for  the  benefit  of  the  ben- 
eficiaries of  said  estate,  not  strictly  expenses  of  administration)  amount 
to  the  sum  of  $ ;  the  total  debts  and  expenses  of  administration  be- 
ing $  

After  due  and  careful  investigation,  examination  and  consideration,  I 
find  and  determine  that  the  clear  market  value  of  all  of  said  decedent's 
personal  property  and  real  estate,  at  the  date  of  his  death,  was  as  follows: 
Personal  property,  $ ;  real  property,  $ ;  and  that  after  deduc- 
tion therefrom  of  the  total  debts  and  expenses  of  administration  (debts 
secured  upon  realty  being  deducted  from  the  value  of  the  real  estate, 
and  debts  unsecured  and  secured  on  personalty  being  deducted  from  the 


MICHIGAN  STATUTE. 


543 


value  of  the  personalty),  there  remains  subject  to  taxation  under  the 
provisions  of  said  act  before  deducting  statutory  exemptions,  transfers 
of  personal  property  to  the  amount  of  $ ;  and  transfers  of  real  prop- 
erty to  the  amount  of  $ ;  and  that  of  said  transfers  certain  interests 

hereinafter  set  forth  in  detail  in  the  schedule  hereto  are  not  presently 
taxable  by  reason  of  the  following  contingency,  rendering  it  impossible 
to  determine  presently  the  value  of  the  interests  passing  and  the  amount 
of  the  tax  thereon,  namely, 

And  I  hereby  find  and  determine  that  the  tax  upon  the  presently  taxable 

transfers  in  said  estate  amounts  to  the  sum  of  $ and  find  that 

the  several  names,  residences,  relationships  and  ages,  where  interest  con- 
sists of  life  estates  or  annuities,  of  the  several  beneficiaries,  together 
with  the  character  and  amount  of  the  several  interests  or  estates  passing 
thereto,  the  rate  of  tax  to  which  each  is  subject,  and  the  portion  of  the 
tax  fixed  upon,  apportioned  to,  and  required  to  be  borne  by  each  of  the 
several  taxable  transfers,  is  as  set  forth  in  detail  in  the  following  schedule. 

(The  schedule  shall  contain  the  following  headings  for  the  several  col- 
umns and  space  for  sufficient  entries,  remarks,  etc.) 


A 

Name  of  Heir 
at  Law,  Leg- 
atee or  Dev- 
i  8  e  »    to 
w  h  o  m  e  s- 
tate  passes. 

B 
Residence. 

0 

Relationship. 

5 

Age  of  Life 
Tenant  or 
Annuitant. 

E 

Bate  of  Tax. 

P 

Value  of  Leg- 
acy or  Per- 
sonal Estate 
Passing. 

Cent. 

a 

Value  of  Per- 
s  o  n  a  1  Es- 
tate Exempt. 

H 

Value  of  Leg- 
acy or  Per- 
sonal Estate 
Taxable. 

I 

Amount  of 
Tax  on  Per- 
sonal Estate 

I 

Value  of  Real 
Estate  Pass- 
ing. 

K 

Value  <Jf  Real 
Estate  Ex- 
empt. 

L 

Value  of  Real 
Estate  Tax- 
able. 

M 

Amount  of 
Tax  on  Real 
Estate. 

N 

Value  of  An- 
nuities, Life 
Estates,  etc., 
Passing. 

O 

Value  of  An- 
nuities Life 
Estates,  etc., 
Exempt. 

P 

Value  of  An- 
nuities, Life 
Estates,  etc., 
Taxable. 

Q 

AmountofTax 
on  Annui- 
ties, Life 
Estates,  etc. 

B 

Total  Amount 
of  Tax. 

Remarks:  Including  descriptions  of  real  estate  taxed  and  any  explana- 
tions necessary  to  a  complete  understanding  of  the  foregoing  entries. 


Judge  of  Probate. 

The  form  of  which  said  order,  exclusive  of  the  schedule,  shall  be  varied 
to  meet  the  requirements  of  special  cases,  but  none  of  the  matter  required 
thereby  shall  be  omitted.  (Pub.  Acts  1899,  p.  293;  Pub.  Acts  1903,  p.  286.) 


544  INHERITANCE   TAXATION. 

§  764.    Copies  of  Letters  and  Forms — Eeport  of  Register  of  Deeds — Prop- 
erty of  Nonresident. 

(Sec.  18.)  Each  judge  of  probate  shall,  within  three  days  after  he  shall 
have  determined  the  tax  and  entered  the  order  required  in  the  preceding 
section,  make  a  duly  certified  copy  of  such  order  upon  forms  furnished  by 
the  auditor  general,  containing  all  the  data  and  matter  required  to  be  en- 
tered in  such  book,  one  of  which  shall  be  immediately  delivered  to  the 
county  treasurer,  from  which  data  the  said  county  treasurer  shall  obtain 
the  information  for  making  the  duplicate  receipt  required  by  this  act, 
and  the  other  transmitted  to  the  auditor  general.  If  in  any  calendar  quarter 
beginning  January,  April,  July  or  October  first  in  each  year,  there  has 
been  no  tax  determined,  the  judge  of  probate  shall  make  a  report  to  the 
auditor  general  affirmatively  showing  this  fact.  The  register  of  deeds  of 
each  county  shall,  upon  blanks  prescribed  and  furnished  by  the  auditor 
general,  as  often  as  any  deed  or  other  conveyance  is  filed  or  recorded  in 
his  office  of  any  property  which  appears  to  have  been  made  in  contempla- 
tion of  death  or  intended  to  take  effect  in  possession  or  enjoyment  after 
the  death  of  the  grantor  or  vendor,  make  reports  in  duplicate  containing 
a  statement  of  the  name  and  place  of  residence  of  such  grantor  or  ven- 
dor, the  name,  relationship  and  place  of  residence  of  the  grantee  or  vendee, 
and  a  description  and  the  value  of  the  property  transferred  and  the  consid- 
eration for  the  transfer  as  stated  in  the  instrument  filed  or  recorded,  one 
of  which  duplicates  shall  be  immediately  delivered  to  the  county  treasurer, 
and  the  other  transmitted  to  the  auditor  general.  Whenever  any  nonresi- 
dent shall  die  leaving  property,  or  any  interest  therein,  in  this  state  which 
has  not  been  duly  administered  under  the  laws  of  this  state  and  it  shall 
be  necessary  to  have  the  question  of  the  taxation  of  the  transfer  thereof 
determined,  such  question  may  be  presented  and  determined  upon  petition 
to  be  filed  by  the  attorney  general  in  any  probate  court  of  this  state. 
The  said  petition  shall  set  forth  the  name  of  the  decedent;  residence  at 
time  of  death;  the  total  amount  of  property  constituting  said  estate;  a 
description  of  and  the  value  of  all  property  in  Michigan;  and  any  and  all 
such  other  data  as  may  be  necessary  to  inform  the  court  of  the  facts  in 
connection  with  such  matter.  It  shall  be  the  duty  of  the  probate  court 
with  which  such  petition  is  filed  to  fix  a  date  for  hearing  thereon  and  to 
give  notice  of  such  hearing  in  such  manner  as  shall  be  prescribed.  Publi- 
cation of  the  notice  of  such  hearing  shall  not  be  necessary  unless  ordered 
by  the  court.  It  shall  be  the  duty  of  the  executor,  administrator,  trustee 
or  any  interested  party  in  said  estate  to  furnish  all  such  facts,  data,  in- 
formation, reports  and  certified  copies  of  proceedings  had  in  connection 
with  said  estate  in  any  other  court,  as  shall  be  required  by  the  attorney 
general  or  directed  by  the  probate  court.  The  probate  court  shall  appoint 
a  resident  of  Michigan  to  represent  the  said  estate  at  such  hearing  and  the 
person  so  appointed  shall  perform  such  duties  as  shall  be  required  by  the 
court.  The  person  so  appointed  shall  have  and  possess  all  of  the  powers 
of  an  executor  or  administrator  for  the  purposes  of  this  section,  but  shall 
not  be  personally  liable  for  any  inheritance  tax  in  said  estate  and  shall 
not  be  required  to  give  any  bond  unless  so  directed  by  the  court.  The  said 


MICHIGAN  STATUTE.  545 

probate  court  shall  at  the  hearing  on  said  petition  or  at  an  adjourned 
hearing,  determine  whether  the  transfer  of  such  property  is  taxable  and 
if  found  taxable,  he  shall  proceed  as  in  all  other  cases  to  fix  and  determine 
the  amount  thereof.  If  it  is  found  that  the  transfer  of  such  property  is 
not  taxable,  an  order  to  that  effect  shall  be  entered  in  the  said  probate 
court.  A  redetermination  of  said  order  may  be  had  and  an  appeal  there- 
from may  be  taken  in  the  same  manner  provided  for  in  this  act.  A  cer- 
tified copy  of  all  such  orders  determining  that  there  is  no  inheritance  tax 
due  and  payable  may  be  procured  from  the  probate  court  upon  the  payment 
of  fifty  cents;  provided,  that  no  order  shall  be  entered  in  any  such  case 
until  there  is  filed  in  said  probate  court  receipts  showing  full  payment  of 
all  expenses  incurred  including  compensation  due  the  person  appointed 
to  represent  said  estate,  all  of  which  expenses  or  compensation  shall  be 
paid  by  the  executor,  administrator  or  any  person  interested  in  said  estate; 
provided,  further,  that  in  case  it  may  be  necessary  to  have  any  such  prop- 
erty subjected  to  regular  probate  proceedings  in  this  state,  or  if  any 
such  estate  shall  have  been  administered  in  this  state,  the  right  to  proceed 
under  this  section  shall  be  discretionary  with  the  probate  court.  This 
section  shall  not  operate  to  relieve  any  such  person  as  is  referred  to  in 
section  nine  of  this  act  from  the  liability  therein  expressed  until  sixty 
days  after  the  date  of  entry  of  the  order  determining  that  there  is  no 
tax  upon  the  transfers  in  said  estate,  or  in  case  a  tax  is  determined,  until 
proper  receipts  showing  payment  thereof  have  been  duly  signed  by  the 
state  treasurer  and  countersigned  by  the  auditor  general.  (Pub.  Acts  1899, 
p.  293;  Pub.  Acts  1903,  p.  289;  Pub.  Acts  1911,  p.  105.) 

§  765.    Report  of  County  Treasurer — Examiners  of  Records. 

(Sec.  19.)  Each  county  treasurer  shall  make  a  report  under  oath  to  the 
auditor  general  on  January,  April,  July  and  October  first  of  each  year  of 
all  taxes  received  by  him  under  this  act  during  the  preceding  calendar 
quarter,  stating  for  what  estate  and  by  whom  and  when  paid.  If  in  any 
calendar  quarter  the  county  treasurer  has  received  no  tax  under  this  act,  the 
report  shall  affirmatively  show  this  fact.  The  form  of  such  report  shall  be 
prescribed  by  the  auditor  general.  If  receipts  issued  by  the  county  treasurer 
and  money  received  thereon  are  not  forwarded  within  the  time  specified  in 
section  three  of  this  act,  he  shall  pay  interest  at  the  rate  of  eight  per  centum 
per  annum  in  addition  to  the  amount  of  such  delinquent  taxes  then  in  ar- 
rears. The  auditor  general  may  employ  not  to  exceed  four  examiners 
whose  duties  shall  be  to  make  examinations  of  the  records  of  the  several 
probate  courts,  county  treasurers  and  registers  of  deeds  in  this  state  and 
report  their  findings  to  him  and  perform  such  other  duties  under  the  provi- 
sions of  this  act  as  the  auditor  general  may  direct,  at  a  salary  of  not  to 
exceed  fifteen  hundred  dollars  per  annum,  payable  in  the  same  manner  as 
the  salaries  of  other  state  officers  are  now  paid.  The  expenses  of  said 
examiners  shall  be  paid  out  of  the  general  fund  in  the  state  treasury  upon 
allowance  by  the  state  board  of  auditors  after  approval  by  the  auditor 
general.  There  is  hereby  appropriated  out  of  the  general  fund  in  the  state 
treasury  a  sufficient  amount  of  money  to  carry  out  the  provisions 
85 


546  INHERITANCE  TAXATION. 

of  this  section.  The  auditor  general  shall  add  to  and  incorporate  in  the 
state  tax  for  the  year  nineteen  hundred  nine,  and  each  year  thereafter,  a 
sufficient  sum  to  reimburse  the  general  fund  in  the  state  treasury  for  the 
amount  herein  appropriated.  (Pub.  Acts  1899,  p.  294;  Pub.  Acts  1903,  p. 
290;  Pub.  Acts  1907,  p.  207;  Pub.  Acts  1909,  p.  71.) 

§  766.     Payment  to  State  Treasurer — Application  of  Funds. 

(Sec.  20.)  All  taxes  levied  and  collected  under  this  act  shall  be  paid  into 
the  state  treasury,  and  be  applied  in  paying  the  interest  upon  the  primary 
school,  university  and  other  educational  funds,  and  the  interest  and  prin- 
cipal of  the  state  debt  in  the  order  herein  recited,  until  the  extinguishment 
of  the  state  debt,  other  than  the  amounts  due  to  educational  funds,  when 
such  taxes  shall  be  added  to  and  constitute  a  part  of  the  primary  school 
interest  fund,  in  pursuance  of  and  in  compliance  with  section  one  of  article 
fourteen  of  the  constitution  of  this  state.  (Pub.  Acts  1899,  p.  294.) 

§  767.    Definitions  of  Terms. 

(Sec.  21.)  The  words  "estate"  and  "property"  as  used  in  this  act  shall  be 
taken  to  mean  the  property  or  interest  therein  of  the  testator,  intestate, 
grantor,  bargainer,  or  vendor,  passing  or  transferred  to  those  not  herein 
specifically  exempted  from  the  provisions  of  this  act,  and  not  as  the  prop- 
erty or  interest  therein  passing  or  transferred  to  the  individual  legatees, 
devisees,  heirs,  next  of  kin,  grantees,  donees,  or  vendees,  and  shall  include 
all  property  or  interest  therein  whether  situated  within  or  without  this 
state.  The  word  "transfer"  as  used  in  this  act  shall  be  taken  to  include 
the  passing  of  property  or  any  interest  therein  in  possession  or  enjoyment, 
present  or  future  by  inheritance,  descent,  devise,  bequest,  grant,  deed,  bar- 
gain, sale  or  gift  in  the  manner  herein  prescribed.  The  words  "county 
treasurer,"  "prosecuting  attorney"  as  used  in  this  act  shall  be  taken  to 
mean  the  county  treasurer  or  prosecuting  attorney  of  the  county  having 
jurisdiction  in  section  ten  of  this  act.  (Pub.  Acts.  1899,  p.  294;  Pub.  Acts 
1903,  p.  290.) 

§  768.    Time  When  Statute  Takes  Effect. 

(Sec.  22.)  No  heir,  legatee,  beneficiary,  trustee,  executor,  administrator  or 
surety  shall  be  held  liable  for  any  inheritance  tax  upon  the  transfer  of  prop- 
erty in  any  estate  in  which  the  property  has  been  distributed  by  order  of  the 
court  prior  to  January  first  nineteen  hundred  five;  nor  where  the  executor  or 
administrator  or  trustee  has  been  discharged  by  order  of  the  court  prior  to 
January  first,  nineteen  hundred  five;  nor  where  the  estate  has  been  closed 
prior  to  January  first,  nineteen  hundred  five.  All  inheritance  taxes  which 
may  have  been  assessed  in  any  such  estate  as  comes  within  the  provisions 
of  this  act  shall  not  be  subject  to  enforcement,  and  all  inheritance  tax  liens 
upon  such  property  ar«  hereby  released.  (Pub.  Acts  1909,  p.  700.) 


MINNESOTA  STATUTE.  547 

CHAPTER  XXXVIII. 
MINNESOTA  STATUTE. 

(Laws  of  1905,  c.  288;  Bewsed  Laws  Supplement  1909,  pp.  g59-S66;  Laws  of 

1911,  pp.  274,  516.) 

§  769.  Transfers  Subject  to  Tax. 

§  770.  Computation  of  Tax. 

§  771.  Eates  of  Taxation. 

§  772.  Eates  of  Taxation. 

§  773.  Transfers  Exempt  from  Taxation. 

§  774.  Time  When  Statute  Takes  Effect— Valuation  of  Property. 

§  775.  Collection  of  Tax  by  Executor. 

§  776.  Payment  to  County  and  State  Treasurer — Kcceipts. 

§  777.  Lien  of  Tax. 

§  778.  Interest  on  Tax. 

§  779.  Sale  of  Property  to  Pay  Tax. 

§  780.  Legacy  Charged  upon  Eeal  Estate. 

§  781.  Eefund  of  Tax  Erroneously  Paid. 

§  782.  Nonresidents — Transfer  or  Delivery  of  Stocks  and  Securities — 
Notice. 

§  783.  Transfer  or  Delivery  of  Deposits  or  Securities — Notice. 

§  784.  Application  by  Attorney  General  for  Letters  of  Administration. 

§  785.  Appointment  of  Appraisers.     * 

§  786.  Appraisement  at  Full  and  True  Value. 

§  787.  Notice  of  Appraisement — Proceedings  and  Eeport — Compensation  of 
Appraisers. 

§  788.  Determination  of  Value  of  Estate  and  Amount  of  Tax. 

§  789.  Notice  of  Tax  for  Which  Estate  is  Liable. 

§  790.  Objections  to  Assessment — Eeassessment. 

§  791.  Notice  to  County  Attorney  of  Delinquencies — Proceedings  to  En- 
force Tax. 

§  792.  Eecords  and  Eeports  of  Probate  Court — Eeport  of  Eegister  of  Deeds. 

§  793.  Stipulation  by  Attorney  General  of  Amount  of  Tax  to  be  Paid. 

§  794.  Power  of  Attorney  General  to  Issue  Citations  and  Examine  Books 
and  Eecords. 

§  795.  Eefund  of  Tax. 

§  796.  Duty  of  State  Auditor  and  Treasurer. 

§  797.  Seal  of  Attorney  General. 

§  798.  Assistant  Attorney  General  in  Inheritance  Tax  Matters. 

§  799.  Time  When  Act  Takes  Effect. 

§  800.  Eepeal  of  Inconsistent  Statutes. 

§  801.  Validity  of  Previous  Proceedings. 

§  802.  Effect  of  This  Act  on  Pending  Proceedings. 

§  769.     Transfers  Subject  to  Tax. 

Sec.  1.     A  tax  shall  be  and  is  hereby  imposed  upon  any  transfer  of  prop- 
erty, real,  personal  or  mixed,  or  any  interest  therein,  or  income  therefrom 


548  INHERITANCE  TAXATION. 

in  trust  or  otherwise,  to  any  person,  association  or  corporation,  except  county, 
town  or  municipal  corporation  within  the  state,  for  strictly  county,  town 
or  municipal  purposes,  in  the  following  cases: 

(1)  When  the  transfer  is  by  will  or  by  the  intestate  laws  of  this  state 
from  any  person  dying  possessed  of  the  property  while  a  resident  of  the 
state. 

(2)  When  a  transfer  is  by  will  or  intestate  law,  of  property  within  the 
state  or  within  its  jurisdiction  and  the  decedent  was  a  nonresident  of  the 
state  at  the  time  of  his  death. 

(3)  When  the  transfer  is  of  property  made  by  a  resident  or  by  a  non- 
resident  when   such  nonresident's  property  is  within  this  state,  or  within 
its  jurisdiction,  by  deed,  grant,  bargain,  sale  or  gift,  made  in  contemplation 
of  the  death  of  the  grantor,  vendor  or  donor,  or  intended  to  take  effect  in 
possession  or  enjoyment  at  or  after  such  d'eath. 

(4)  Such  tax  shall  be  imposed    when    any    su«h    person    or    corporation 
become  beneficially  entitled,  in  possession  or  expectancy,  to  any  property  or 
the  income  thereof,  by  any  such  transfer  whether  made  before  or  after  the 
passage  of  this  act. 

(5)  Whenever    any    person    or    corporation    shall    exercise  a  power   of 
appointment  derived  from  any  disposition  of  property  made  either  before 
or  after  the  passage  of  this   act,  such   appointment  when  made  shall  be 
deemed  a  transfer  taxable  under  the  provisions  of  this  act  in  the  same 
manner  as  though  the  property  to  which  such  appointment  relates  belonged 
absolutely  to  the  donee  of  such  power  and  had  been  bequeathed  or  devised 
by  such  donee  by  will;  and  whenever  any  person  or  corporation  possessing 
such  a  power  of  appointment  so  derived  shall  omit  or  fail  to  exercise  the 
same  within  the  time  provided  therefor,  in  whole  or  in  part  a  transfer  taxable 
under  the  provisions  of  this  act  shall  be  deemed  to  take  place  to  the  extent  of 
such  omission  or  failure,  in  the  same  manner  as  though  the  persons  or  cor- 
porations thereby  becoming  entitled  to  the  possession  or  enjoyment  of  the 
property  to  which  such  power  related  had  succeeded  thereto  by  a  will  of 
the  donee  of  the  power  failing  to  exercise  such  power,  taking  effect  at  the 
time  of  such  omission  or  failure.     (Laws  1905,  c.  288;  Eev.  Laws  Sup.  1909, 
p.  259;  Laws  1911,  p.  516.) 

§  770.    Computation  of  Tax. 

Sec.  2.  The  tax  so  imposed  shall  be  computed  upon  the  true  and  full 
value  in  money  of  suc-h  property  at  the  rates  hereinafter  prescribed  and 
only  upon  the  excess  of  the  exemptions  hereinafter  granted.  (Rev.  Laws 
Sup.  1909,  p.  260;  Lawa  1911,  p.  516.) 

§  771.    Kates  of  Taxation. 

Sec.  2a.  When  the  property  or  any  beneficial  interest  therein  passes  by 
any  such  transfer  where  the  amount  of  the  property  shall  exceed  in  value 
the  exemption  hereinafter  specified  and  shall  not  exceed  in  value  fifteen 
thousand  dollars  the  tax  hereby  imposed  shall  be: 

(1)  Where  the  person  entitled  to  any  beneficial  interest  in  such  prop- 
erty shall  be  the  wife,  or  lineal  issue,  at  the  rate  of  one  per  centum  of  the 
clear  value  of  such  interest  in  such  property. 


MINNESOTA  STATUTE.  549 

(2)  Where  the  person   or  persons  entitled  to  any  beneficial  interest  in 
nuch  property  shall  be  the  husband,  lineal  ancestor  of  the  decedent  or  any 
child  adopted  as   such   in   conformity  with  the  laws   of  this  state,   or   any 
child   to   whom   such    decedent   for   not   less   than   ten   years   prior   to   such 
transfer  stood  in  the  mutually  acknowledged  relation  of  a  parent,  provided, 
however,  such  relationship  began  at  or  before  the  child's  fifteenth  birthday, 
and  was  continuous  for  said  ten  years  thereafter,  or  any  lineal  issue  of 
such  adopted  or  mutually  acknowledged  child,  at  the  rate  of  one  and  one- 
half  per  centum  of  the  clear  value  of  such  interest  in  such  property. 

(3)  Where  the  person   or  persons  entitled  to  any  beneficial  interest   in 
such  property  shall  be  the  brother  or  sister  or  a  descendant  of  a  brother  or 
sister  of  the  decedent,  a  wife,  or  widow  of  a  son,    or    the    husband    of    a 
daughter  of  the  decedent,  at  the  rate  of  three  per  centum  of  the  clear  value 
of  such  interest  in  such  property. 

(4)  Where  the  person   or  persons   entitled  to   any  beneficial  interest  in 
such  property  shall  be  the  brother  or  sister  of  the  father  or  mother  or  a 
descendant  of  a  brother  or  sister  of  the  father  or  mother  of  the  decedent,  at 
the  rate  of  four  per  centum  of    the    clear    value    of    such    interest    in    such 
property. 

(5)  Where  the  person  or  persons   entitled  to  any  beneficial  interest  in 
such  property  shall  be  in  any  other  degree  of  collateral  consanguinity  than 
is  hereinbefore  stated,  or  shall  be  a  stranger  in  blood  to  the  decedent,  or 
shall  be  a  body  politic  or  corporate,  at  the  rate  of  five  per  centum  of  the 
clear  value  of  such  interest  in  such  property.     (Laws  1905,  c.  288;   Kev. 
Laws  Sup.  1909,  p.  260;  Laws  1911,  p.  517.) 

§  772.    Bates  of  Taxation. 

Sec.  2b.  The  foregoing  rates  in  section  2a  are  for  convenience  termed 
the  primary  rates. 

When  the  amount  of  the  clear  value  of  such  property  or  interest  exceed 
fifteen  thousand  dollars,  the  rates  of  tax  upon  such  excess  shall  be  as 
follows: 

(1)  Upon  all  in  excess  of  fifteen  thousand  dollars  and  up  to  thirty  thou- 
sand dollars  one  and  one-half  times  the  primary  rates. 

(2)  Upon  all  in  excess  of  thirty  thousand  dollars  and  up  to  fifty  thou- 
sand dollars,  two  times  the  primary  rates. 

(3)  Upon  all  in  ex&ess  of  fifty  thousand  dollars  and  up  to  one  hundred 
thousand  dollars,  two  and  one-half  times  the  primary  rates. 

(4)  Upon  all  in  excess  of  one  hundred  thousand  dollars,  three  times  the 
primary  rates.     (Laws   1905,  c.  288;   Eev.  Lawa  Sup.  1909,  p.  260;   Laws 
1911,  p.  518.) 

§  773.     Transfers  Exempt  from  Taxation. 

Sec.  2c.     The  following  exemptions  from  the  tax  are  hereby  allowed: 

(1)  All  property  transferred  to  municipal  corporations  within  the  state 
for  strictly  county,  town  or  municipal  purposes,  shall  be  exempt. 

(2)  Property  of   the   clear   value  of  ten   thousand   dollars  transferred   to 
the  widow  of  the  decedent  (or  husband  of  the  decedent,  each  of  the  lineal 


550  INHERITANCE   TAXATION. 

issue  of  the  decedent,  or  any  child  adopted  as  such  in  conformity  with  the 
laws  of  this  state,  or  any  child  to  whom  the  decedent  for  not  less  than 
ten  (10)  years  prior  to  such  transfer  stood  in  the  mutually  acknowledged 
relation  of  a  parent,  provided,  however,  such  relationship  began  at  or  be- 
fore the  child's  fifteenth  birthday,  and  was  continuous  for  said  ten  years 
thereafter,  or  any  lineal  issue  of  such  adopted  or  mutually  acknowledged 
child)  shall  be  exempt. 

(3)  Property  of  the   clear  value   of  three   thousand   dollars   transferred 
to  each  of  the  lineal  ancestors  of  the  decedent  shall  be  exempt. 

(4)  Property  of   the   clear   value   of    one   thousand    dollars   transferred    to 
each  of  the  persons   described  in   the  third  subdivision   of  section  two  a 
(2a)  shall  be  exempt. 

(5)  Property  of  the  clear  value  of  two  hundred  and  fifty  dollars  trans- 
ferred to  each  of  the  persons  described  in  the  fourth  subdivision  of  section 
two  a  (2a)  shall  be  exempt. 

(6)  Property  of  the  clear  value  of  one  hundred   dollars  transferred  to 
each  of  the  persons  and  corporations  described  in  the  fifth  subdivision  of 
section   two  a    (2a)    shall   be   exempt,    provided,   however,    that    property   of 
the  clear  value  of  two  thousand  five  hundred  dollars  transferred  to  a  pub- 
lic hospital,   academy,   college,   university,    seminary    of    learning,    church    or 
institution   of  purely   public  charity,   within   this   state,   shall   be    exempt. 
(Laws  1905,  c.  1905;  Rev.  Laws  Sup.  1909,  p.  260;  Laws  1911,  p.  518.) 

Sec.  2d.  This  act  [the  foregoing  sections  1,  2,  2a,  2b,  2c]  shall  take  effect 
and  be  in  force  from  and  after  July  1,  1911,  provided,  however,  that  the 
provisions  of  this  act  shall  apply  only  to  legacies,  inheritances,  devises  and 
transfers  received  from  persons  who  shall  die  subsequent  to  the  passage 
of  this  act;  all  gifts,  legacies,  inheritances  and  devises  heretofore  or  here- 
after received  from  any  person  who  shall  have  died  prior  to  the  passage  of 
this  amendatory  act  shall  be  taxed  and  shall  be  subject  to  the  provisions 
of  sections  1  and  2  of  chapter  288,  Laws  1905,  to  the  same  extent  and  in 
the  same  manner  as  though  this  amendatory  act  had  not  been  passed. 
(Laws  1911,  p.  519.) 

§  774.    Time  When  Statute  Takes  Effect — Valuation  of  Property. 

Sec.  3.  All  taxes  imposed  by  this  act  shall  take  effect  at  and  upon  the 
death  of  the  person  from  whom  the  transfer  is  made,  and  shall  be  due  and 
payable  at  the  expiration  of  one  year  from  such  death,  except  as  otherwise 
provided  in  this  act. 

The  value  of  every  future  or  limited  estate,  income,  interest  or  annuity 
dependent  upon  any  life  or  lives  in  being,  shall  be  determined  by  the  rule, 
method  and  standard  of  mortality  and  value  employed  by  the  commissioner 
of  insurance  in  ascertaining  the  value  of  policies  of  life  insurance  and 
annuities  for  the  determination  of  liabilities  of  life  insurance  companies, 
except  that  the  rate  of  interest  for  making  such  computations  shall  be  five 
per  centum  per  annum. 

When  any  transfer  is  made  in  trust  for  any  person  or  persons  or  corpo- 
"ation  or  corporations,  and  the  right  of  the  beneficiaries  of  said  trust  to 
receive  the  property  embraced  in  said  trust  is  susceptible  of  present  valua- 


MINNESOTA  STATUTE.  551 

tion,  then  and  in  such  case  the  tax  thereon  shall  be  paid  at  the  same  time 
and  in  the  same  manner,  and  in  like  amount,  that  would  be  the  case  if  the 
beneficiaries  of  such  trust  received  the  same  directly  from  the  decedent  or 
the  persons  from  whom  the  property  is  transferred. 

When  an  estate  for  life  or  for  years  can  be  devested  by  the  act  or  omis- 
sion of  the  legatee  or  devisee,  it  shall  be  taxed  as  if  there  were  no  possi- 
bility of  such  devesting. 

When  property  is  transferred  in  trust  or  otherwise,  and  the  rights,  inter- 
est or  estates  of  the  transferee  are  dependent  upon  contingencies  or  con- 
ditions whereby  they  may  be  wholly  or  in  part  created,  defeated,  extended 
or  abridged,  a  tax  shall  be  imposed  upon  said  transfer  at  the  highest  rate 
which,  on  the  happening  of  any  of  said  contingencies  or  conditions,  would 
be  possible  under  the  provisions  of  this  act,  and  such  tax  so  imposed  shall 
be  due  and  payable  forthwith  by  the  executors  or  trustees  out  of  the 
property  transferred;  provided,  however,  that  on  the  happening  of  any 
contingency  whereby  the  said  property,  or  any  part  thereof,  is  transferred 
to  a  person  or  corporation  exempt  from  taxation  under  the  provisions  of  this 
act,  or  to  any  person  taxable  at  a  rate  less  than  the  rate  imposed  and  paid, 
such  person  or  corporation  shall  be  entitled  to  a  return  of  so  much  of  the 
tax  imposed  and  paid  as  is  the  difference  between  the  amount  paid  and  the 
amount  which  said  person  or  corporation  should  pay  under  fche  provisions 
of  this  article,  with  interest  thereon  at  the  rate  of  three  per  centum  per 
annum  from  the  time  of  payment.  Such  return  of  overpayment  shall  be 
made  in  the  manner  provided  by  section  21c. 

In  estimating  the  value  of  any  estate  or  interest  in  property,  to  the  bene- 
ficial enjoyment  or  possession  whereof  there  are  persons  or  corporations 
presently  entitled  thereto,  no  allowance  shall  be  made  on  account  of  any 
contingent  encumbrance  thereon,  nor  on  account  of  any  contingency  upon 
the  happening  of  which  the  estate  or  property,  or  some  part  thereof  or 
interest  therein  might  be  abridged,  defeated  or  diminished;  provided,  how- 
ever, that  in  the  event  of  such  encumbrance  taking  effect  as  an  actual 
burden  upon  the  interest  of  the  beneficiary  or  in  the  event  of  the  abridg- 
ment, defeat  or  diminution  of  said  estate  or  property,  or  interest  therein, 
as  aforesaid,  a  return  shall  be  made  to  the  person  properly  entitled  thereto 
of  a  proportionate  amount  of  such  tax  on  account  of  the  encumbrance  when 
taking  effect,  or  so  much  as  will  reduce  the  same  to  the  amount  which  would 
have  been  assessed  on  account  of  the  actual  duration  or  extent  of  the  estate 
or  interest  enjoyed.  Such  return  of  tax  shall  be  made  in  the  manner  pro- 
vided by  section  21c. 

Where  any  property  shall,  after  the  passage  of  this  act,  be  transferred 
subject  to  any  charge,  estate  or  interest,  determinate  by  the  death  of  any 
person,  or  at  any  period  ascertainable  only  by  reference  to  death,  the  in- 
crease accruing  to  any  person  or  corporation  upon  the  extinction  or 
determination  of  such  charge,  estate  or  interest,  shall  be  deemed  a  transfer 
of  property  taxable  under  the  provisions  of  this  act  in  the  same  manner  as 
though  the  person  or  corporation  beneficially  entitled  thereto  had  then 
acquired  such  increase  from  the  person  from  whom  the  title  to  their  re- 
spective estates  or  interests  is  derived. 


552  INHERITANCE   TAXATION. 

The  tax  on  any  devise,  bequest,  legacy,  gift  or  transfer  limited,  condi- 
tioned, dependent  or  determinable  upon  the  happening  of  any  contingency 
or  future  event,  by  reason  of  which  the  full  and  true  value  thereof  cannot 
be  ascertained  as  provided  for  by  the  provisions  of  this  act  at  or  before 
the  time  when  the  taxes  become  due  and  payable  as  hereinbefore  provided, 
shall  accrue  and  become  due  and  payable  when  the  person  or  corporation 
beneficially  entitled  thereto  shall  come  into  actual  possession  or  enjoyment 
thereof. 

Estates  in  expectancy  which  are  contingent  or  defeasible  and  in  which 
proceedings  for  the  determination  of  the  tax  have  not  been  taken  or  where 
the  taxation  thereof  has  been  held  in  abeyance,  shall  be  appraised  at  their 
full,  undiminis>hed  value  when  the  persons  entitled  thereto  shall  come  into 
the  beneficial  enjoyment  or  possession  thereof,  without  diminution  for  or 
on  account  of  any  valuation  theretofore  made  of  the  particular  estates  for 
purposes  of  taxation,  upon  which  said  estates  in  expectancy  may  have  been 
limited.  (Laws  1905,  c.  288;  Eev.  Laws  Sup.  1909,  p.  260;  Laws  1911, 
p.  274.) 

§  775.     Collection  of  Tax  by  Executor. 

Sec.  4.  Any  administrator,  executor  or  trustee  having  in  charge  or  in 
trust  any  property  for  distribution  embraced  in  or  belonging  to  any  inher- 
itance, devise,  bequest,  legacy  or  gift,  subject  to  the  tax  thereon  as 
imposed  by  this  act,  shall  deduct  the  tax  therefrom,  and  within  thirty  days 
thereafter  he  shall  pay  over  the  same  to  the  county  treasurer  as  herein 
provided.  If  such  property  be  not  in  money,  he  shall  collect  the  tax  on 
such  inheritance,  devise,  bequest,  legacy  or  gift  upon  the  appraised  value 
thereof,  from  the  person  entitled  thereto.  He  shall  not  deliver,  or  be  com- 
pelled to  deliver,  any  property  embraced  in  any  inheritance,  devise,  bequest, 
legacy  or  gift,  subject  to  tax  under  this  act,  to  any  person  until  he  shall 
have  collected  the  tax  thereon.  (Laws  1901,  c.  1905;  Eev.  Laws  Sup.  1909, 
p.  261.) 

§  776.    Payment  to  Treasurer — Receipts. 

Sec.  5.  The  tax  imposed  by  this  act  upon  inheritances,  devises,  bequests 
or  legacies  shall  be  paid  to  the  treasurer  of  the  county  in  which  the  probate 
court  having  jurisdiction,  as  herein- provided,  is  located;  and  the  tax  so 
imposed  upon  gifts  shall  be  payable  to  the  state  treasurer,  and  the  treas- 
urer to  whom  the  tax  is  paid  shall  give  the  executor,  administrator,  trustee 
or  person  paying  such  tax,  duplicate  receipts  therefor,  one  of  which  shall 
be  immediately  transmitted  to  the  state  auditor,  whose  duty  it  shall  be  to 
charge  the  treasurer  so  receiving  the  tax  with  the  amount  thereof;  and 
where  such  tax  is  paid  to  the  county  treasurer  he  shall  seal  said  receipt 
with  the  seal  of  his  office  and  countersign  the  same  and  return  it  to  the 
executor,  administrator  or  trustee,  whereupon  it  shall  be  a  proper  voucher 
in  the  settlement  of  his  accounts.  No  executor,  administrator,  or  trustee 
shall  be  entitled  to  a  final  accounting  of  an  estate,  in  the  settlement  of 
which  a  tax  may  become  due  under  the  provisions  of  this  act,  until  he  shall 
produce  a  receipt,  so  sealed  and  countersigned  by  the  state  auditor,  or  a 


MINNESOTA  STATUTE.  553 

certified  copy  of  the  same.  All  taxes  paid  into  the  county  treasury  under 
the  provisions  of  this  act  shall  immediately  be  paid  into  the  state  treasury 
upon  the  warrant  of  the  state  auditor  and  shall  belong  to  and  be  a  part  of 
the  revenue  fund  of  the  state.  (Laws  1905,  c.  288;  Bev.  Laws  Sup.  1909, 
p.  261.) 

§  777.    Lien  of  Tax. 

Sec.  6.  Every  tax  imposed  by  this  act  shall  be  a  lien  upon  the  property 
embraced  in  any  inheritance,  devise,  bequest,  legacy  or  gift  until  paid,  and 
the  person  to  whom  such  property  is  transferred  and  the  administrators, 
executors  and  trustees  of  every  estate  embracing  such  property  shall  be  per- 
sonally liable  for  snch  tax,  until  its  payment,  to  the  extent  of  the  value  of 
such  property.  (Laws  1905,  c.  288;  Eev.  Laws  Sup.  1909,  p.  261.) 

§  778.    Interest  on  Tax. 

Sec.  7.  If  such  tax  is  not  paid  within  one  year  from  the  accruing  thereof, 
interest  shall  be  charged  and  collected  thereon  at  the  rate  of  seven  per 
centum  per  annum  from  the  time  the  tax  is  due,  unless,  by  reason  of  claims 
upon  the  estate,  necessary  litigation  or  other  unavoidable  cause  of  delay, 
such  tax  cannot  be  determined  as  herein  provided;  in  such  case  interest  at 
the  rate  of  six  per  centum  per  annum  shall  be  charged  upon  such  tax  from 
the  accrual  thereof  until  the  cause  of  such  delay  is  removed,  after  which 
seven  per  centum  shall  be  charged.  (Laws  1905,  e.  288;  Kev.  Laws  Sup. 
1909,  p.  261.) 

§  779.     Sale  of  Property  to  Pay  Tax. 

Sec.  8.  Every  executor,  administrator  or  trustee  shall  have  full  power  to 
sell  so  much  of  the  property  embraced  in  any  inheritance,  devise,  bequest 
or  legacy  as  will  enable  him  to  pay  the  tax  imposed  by  this  act,  in  the 
same  manner  as  he  might  be  entitled  by  law  to  do  for  the  payment  of  the 
debts  of  a  testator  or  intestate.  (Laws  1905,  c.  288;  Eev.  Laws  Sup.  1909, 
p.  261.) 

t 

§  780.    Legacy  Charged  upon  Real  Estate. 

Sec.  9.  If  any  bequest  or  legacy  shall  be  charged  upon  or  payable  out  of 
any  property,  the  heir  or  devisee  shall  deduct  such  tax  therefrom  and  pay 
such  tax  to  the  administrator,  executor  or  trustee,  and  the  tax  shall  remain 
a  lien  or  charge  on  such  property  until  paid;  and  the  payment  thereof  shall 
be  enforced  by  the  executor,  administrator  or  trustee  in  the  same  manner 
that  payment  of  the  bequest  or  legacy  might  be  enforced,  or  by  the  county 
attorney  under  section  20  [1038-20]  of  this  act.  If  any  bequest  or  legacy 
shall  be  given  in  money  to  any  person  for  a  limited  period,  the  adminis- 
trator, executor  or  trustee  shall  retain  the  tax  upon  the  whole  amount;  but 
if  it  be  not  in  money,  he  shall  make  application  to  the  court  having  juris- 
diction of  an  accounting  by  him  to  make  an  apportionment,  if  the  case 
requires,  of  the  sum  to  be  paid  into  his  hands  by  such  legatee  or  beneficiary, 
and  for  such  further  order  relative  thereto,  as  the  case  may  require.  (Laws 
1905,  c.  288;  Eev.  Laws  Sup.  1909,  p.  262.) 


554  INHERITANCE   TAXATION. 

§  781.    Refund  of  Tax  Erroneously  Paid. 

Sec.  10.  When  any  tax  imposed  by  this  act  shall  have  been  erroneously 
paid,  wholly  or  in  part,  the  person  paying  the  same  shall  be  entitled  to  a 
refundment  of  the  amount  so  erroneously  paid,  and  the  auditor  of  state 
shall,  upon  satisfactory  proofs  presented  to  him  of  the  facts  relating  thereto, 
draw  his  warrant  upon  the  state  treasurer  for  the  amount  thereof,  in  favor 
of  the  person  entitled  thereto;  provided,  however,  that  all  applications  for 
such  refunding  of  erroneous  taxes  shall  be  made  within  three  years  from 
the  payment  thereof.  (Laws  1905,  c.  288;  Eev.  Laws  Sup.  1909,  p.  262.) 

§  782.  Nonresidents — Transfer  or  Delivery  of  Stocks  and  Securities — 
Notice. 

Sec.  11.  Subdivision  1.  If  a  foreign  executor,  administrator  or  trustee 
shall  assign  or  transfer  any  stock  or  obligation  in  this  state,  standing  in 
the  name  of  a  decedent  or  in  trust  for  a  decedent,  liable  to  any  such  tax, 
the  tax  shall  be  paid  to  the  state  treasurer  on  the  transfer  thereof,  and 
no  such  assignment  or  transfer  shall  be  valid  until  such  tax  is  paid.  * 

If  any  nonresident  of  this  S'tate  dies  owning  personal  property  in  this 
state,  such  property  may  be  transferred  or  assigned  by  the  personal  repre- 
sentative of,  or  trustee  for  the  decedent,  only  after  such  representative  or 
trustee  shall  have  procured  a  certificate  from  the  attorney  general  consent- 
ing to  the  transfer  of  such  property.  Such  consent  shall  be  issued  by  the 
attorney  general  only  in  case  there  is  no  tax  due  hereunder;  or  in  case 
there  is  a  tax,  when  the  same  shall  have  been  paid. 

Any  personal  representative,  trustee,  heir  or  legatee  of  a  nonresident  de- 
cedent desiring  to  transfer  property  having  its  situs  in  this  state  may  make 
application  to  the  attorney  general  for  the  determination  of  whether  there  is 
any  tax  due  to  the  state  on  account  of  the  transfer  of  the  decedent's  property 
and  such  applicant  shall  furnish  to  the  attorney  general  therewith  an  affidavit 
setting  forth  a  description  of  all  property  owned  by  the  decedent  at  the  time 
of  his  death  and  having  its  situs  in  the  state  of  Minnesota,  the  value  of  such 
property  at  the  time  of  said  decedent's  death;  also  when  required  by  the  attor- 
ney general,  a  description  of  and  statement  of  the  true  value  of  all  the  prop- 
erty owned  by  the  decedent  at  the  time  of  his  death  and  having  its  situs  outside 
the  state  of  Minnesota,  and  also  a  schedule  or  statement  of  the  valid  claims 
against  the  estate  of  the  decedent,  including  the  expenses  of  his  last  sickness 
and  funeral  and  the  expenses  of  administering  his  estate.  Such  person  shall 
also,  on  request  of  the  attorney  general,  furnish  to  the  latter  a  certified  copy 
of  the  last  will  of  the  decedent  in  case  he  died  testate,  or  an  affidavit  setting 
forth  the  names,  ages  and  residences  of  the  heirs  at  law  of  the  decedent  in 
case  he  died  intestate  and  the  proportion  of  the  entire  estate  of  such  de- 
cedent inherited  by  each  of  said  persons,  and  the  relation,  if  any,  which  each 
legatee,  devisee,  heir,  or  transferee  sustained  to  the  decedent  or  person  from 
whom  the  transfer  was  made.  Such  affidavits  shall  be  subscribed  and  sworn 
to  by  the  personal  representative  of  the  decedent  or  some  other  person  having 
knowledge  of  the  facts  therein  set  forth. 

The  statements  in  any  such  affidavits  as  to  value  or  otherwise  shall  not  be 
binding  on  the  attorney  general  in  case  he  believes  the  same  to  be  untrue. 


MINNESOTA  STATUTE.  555 

From  the  information  so  furnished  to  him  and  such  other  information  as  he 
may  have  with  reference  thereto,  the  attorney  general  shall,  with  reasonable 
expedition,  determine  the  amount  of  tax,  if  any,  due  to  the  state  under  the 
provisions  of  this  act  and  notify  the  person  making  the  application  of  the 
amount  thereof  claimed  to  be  due.  On  payment  of  the  tax  so  determined  to 
be  due  or  in  case  there  is  no  tax  due  to  the  state,  the  attorney  general  shall 
issue  a  consent  to  the  transfer  of  the  property  so  owned  by  the  decedent. 

No  corporation  organized  under  the  laws  of  the  state  of  Minnesota  shall 
transfer  on  its  books  any  shares  of  its  capital  stock  standing  in  the  name  of  a 
nonresident  decedent,  or  in  trust  for  a  nonresident  decedent,  without  the  con- 
sent of  the  attorney  general  first  procured  as  hereinbefore  provided  for.  Any 
corporation  violating  the  provisions  of  this  section  shall  be  liable  to  the  state 
for  the  amount  of  any  tax  due  to  the  state  on  a  transfer  of  any  such  shares 
of  stock,  and  in  addition  thereto  a  penalty  equal  to  ten  per  cent  of  the 
amount  of  such  tax;  to  be  recovered  in  a  civil  action  in  the  name  of  and 
for  the  benefit  of  the  state. 

Any  person  aggrieved  by  the  determination  of  the  attorney  general  in  any 
matter  hereinbefore  provided  for,  may,  within  twenty  days  thereafter  appeal 
to  the  district  court  of  Hennepin  county,  or  Ramsey  county,  Minnesota,  by 
filing  with  the  attorney  general  a  notice  in  writing  setting  forth  his  objections 
to  such  determination  and  that  he  appeals  therefrom  and  thereupon  within 
ten  days  thereafter  the  attorney  general  shall  transmit  the  original  papers  and 
records  which  have  been  filed  with  him  in  relation  to  such  application  for  con- 
sent, to  the  clerk  of  the  district  court  .to  which  the  appeal  shall  have  been 
taken,  and  thereupon  said  court  shall  acquire  jurisdiction  of  such  application 
and  proceeding.  Upon  eight  days'  notice  given  to  the  attorney  general  by  the 
appellant,  the  matter  may  be  brought  on  for  hearing  and  determination  by 
such  court  either  in  term  time  or  vacation,  at  a  general  or  special  term  of  said 
court,  or  at  chambers  as  may  be  directed  by  order  of  the  court.  The  said 
court  may  determine  any  and  all  questions  of  law  and  fact  necessary  to  the 
enforcement  of  the  provisions  of  this  act  according  to  its  intent  and  purpose, 
and  may  by  order  direct  the  correction,  amendment  or  modification  or  [of] 
any  determination  made  by  the  attorney  general. 

On  such  hearing  either  party  may  introduce  the  testimony  of  witnesses  and 
other  evidence  in  the  same  manner  and  subject  to  the  same  rules  which  govern 
in  civil  actions.  When  necessary,  the  court  may  adjourn  or  continue  its  hear- 
ings from  time  to  time,  to  enable  the  .parties  to  secure  the  attendance  of  wit- 
nesses or  the  taking  of  depositions.  Depositions  may  be  taken  and  used  in 
such  proceedings  in  the  same  manner  as  is  now  provided  by  law  for  the  taking 
of  depositions  in  civil  actions. 

The  attorney  general  and  any  person  aggrieved  by  the  order  of  the  district 
court  may  appeal  to  the  supreme  court  from  any  such  order  made  by  said 
courts,  within  the  time  and  in  the  manner  now  provided  by  law  for  the  taking 
of  appeals  from  orders  in  civil  actions. 

Subdivision  2.  No  tax  shall  be  imposed,  "however,  upon  any  transfer  of  per- 
sonal property  within  this  state  owned  by  a  nonresident  of  this  state  at  the 
time  of  his  death,  where  by  the  laws  of  the  state  of  the  decedent's  domicile,  an 
inheritance,  succession  or  transfer  tax  is  impose.il  on  transfers  of  personal 


556  INHERITANCE   TAXATION. 

property  of  decedents,  provided  the  laws  of  such  state  exempt,  or  do  not  impose 
a  tax  upon  transfers  of  personal  property  of  residents  of  Minnesota  having 
its  situs  in  such  state.  It  is  hereby  expressly  declared  that  the  inclusion  in 
this  act  of  the  provisions  of  this  subdivision  is  not  an  indispensable  inducement 
to  the  passage  of  this  act.  and  if  at  any  time  the  provisions  of  this  subdivision 
shall  be  held  to  be  unconstitutional,  the  other  provisions  of  this  act  shall  not 
be  invalidated  thereby.  (Kev.  Laws  Sup.  1909,  p.  262;  Laws  1911,  p.  276.) 

§  783.     Transfer  or  Delivery  of  Deposits  or  Securities — Notice. 

Sec.  12.  No  safe  deposit  company,  bank  or  other  institution,  person  or  per- 
sons holding  securities  or  assets  of  a  decedent,  shall  deliver  or  transfer  the 
same  to  the  executors,  administrators  or  legal  representatives  of  said  decedent, 
or  upon  their  order  or  request,  unless  notice  of  the  time  and  place  of  such  in- 
tended transfer  be  served  upon  the  county  treasurer,  personally  or  by  repre- 
sentative, to  examine  said  securities  at  the  time  of  such  delivery  or  transfer. 
If  upon  such  examination  the  county  treasurer  or  his  said  representatives  shall 
for  any  cause  deem  it  advisable  that  such  securities  or  assets  should  not  be 
immediately  delivered-  or  transferred,  he  may  forthwith  notify  in  writing  such 
company,  bank,  institution  or  person  to  defer  delivery  or  transfer  thereof  for 
a  period  not  to  exceed  ten  days  from  the  date  of  such  notice,  and  thereupon 
it  shall  be  the  duty  of  the  party  notified  to  defer  such  delivery  or  transfer 
until  the  time  stated  in  such  notice  or  until  the  revocation  thereof  within  such 
ten  days.  Failure  to  serve  the  notice  first  above  mentioned,  or  to  allow  such 
examination,  or  to  defer  the  delivery  of  such  securities  or  assets  for 'the  time 
stated  in  the  second  of  such  notices,  shall  render  said  safe  deposit  company, 
trust  company,  bank  or  other  institution,  person  or  persons,  liable  to  the  pay- 
ment of  the  tax  due  upon  the-  said  security  or  assets,  pursuant  to  the  provisions 
of  this  act.  (Kev.  Laws  Sup.  1909,  p.  262.) 

§  784.    Application  by  Attorney  General  for  Letters  of  Administration. 

Sec.  13.  Upon  the  presentation  of  any  petition  to  any  probate  court  of  this 
state  for  letters  testamentary  or  of  administration,  or  for  ancillary  letters, 
testamentary  or  of  administration,  the  probate  court  shall  cause  a  copy  of  the 
citation  or  order  for  the  hearing  of  such  petition  to  be  served  upon  the  county 
treasurer  of  his  county  not  less  than  ten  days  prior  to  such  hearing.  The 
court  shall  thereupon,  as  soon  as  practicable  after  the  granting  of  any  such 
letters,  proceed  to  ascertain  and  determine  the  value  of  every  inheritance,  de- 
vise, bequest  or  legacy  embraced  in  or  payable  out  of  the  estate  in  which  such 
letters  are  granted  and  the  taxes  due  thereon.  The  county  treasurers  of  the 
several  counties,  and  the  attorney  general,  shall  have  the  same  rights  to  apply 
for  letters  of  administration  as  are  conferred  upon  creditors  by  law.  (Laws 
1905,  c.  288;  Eev.  Laws  Sup.  1909,  p.  262;  Laws  1911,  p.  278.) 

§  785.    Appointment  of  Appraisers. 

Sec.  14.  The  probate  court  may,  in  any  matter  mentioned  in  the  preceding 
section,  either  upon  its  own  motion  or  upon  the  application  of  any  interested 
party,  including  county  treasurers  and  the  attorney  general,  and  as  often  as 
and  when  occasion  requires,  appoint  one  or  more  impartial  and  disinterested 


MINNESOTA  STATUTE.  557 

persons  as  appraisers  to  appraise  the  true  and  full  value  of  the  property  em- 
braced in  any  inheritance,  devise,  bequest,  or  legacy,  subject  to  the  payment 
of  any  tax  imposed  by  this  act.  (Laws  1905,  c.  288;  Rev.  Laws  Sup.  1909, 
p.  263;  Laws  1911,  p.  279.) 

§  786.    Appraisement  at  Full  and  True  Value. 

Sec.  15.  Every  inheritance,  devise,  bequest,  legacy,  transfer  or  gift  upon 
which  a  tax  is  imposed  under  this  act  shall  be  appraised  at  its  full  and  true 
value  immediately  upon  the  death  of  decedent,  or  as  soon  thereafter  as  may 
be  practicable;  provided,  however,  that  when  such  devise,  bequest,  legacy, 
transfer  or  gift  shall  be  of  such  a  nature  that  its  true  and  full  value  cannot 
be  ascertained,  as  herein  provided,  at  such  time,  it  shall  be  appraised  in  like 
manner  at  the  time  such  value  first  becomes  ascertainable.  (Laws  1905,  c. 
288;  Rev.  Laws  Sup.  1909,  p.  263;  Laws  1911,  p.  279.) 

§  787.  Notice  of  Appraisement — Proceedings  and  Report — Compensation  of 
Appraisers. 

Sec.  16.  The  appraisers  appointed  under  the  provisions  of  this  act  shall 
forthwith  give  notice  by  mail  to  all  persons  known  to  have  a  claim  or  interest 
in  the  inheritance,  devise,  bequest,  legacy  or  gift  to  be  appraised,  including 
the  county  treasurer,  attorney  general,  and  such  persons  as  the  probate  court 
may  by  order  direct,  of  the  time  and  place  when  they  will  make  such  appraisal. 
They  shall  at  such  time  and  place  appraise  the  same  at  its  full  and  true  value, 
as  herein  prescribed,  and  for  that  purpose  the  probate  court  appointing  said 
appraisers  is  authorized1  and  empowered  to  issue  subpoenas  and  compel  the 
attendance  of  witnesses  before  such  appraisers  at  the  place  fixed  by  the  ap- 
praisers as  the  place  where  they  will  meet  to  hear  such  testimony  and  make 
such  appraisal.  Such  appraisers  may  administer  oaths  or  affirmations  to  such 
witnesses  and  require  them  to  testify  concerning  any  and  all  property  owned 
by  the  decedent  and  the  true  value  thereof  and  any  disposition  thereof  which 
may  have  been  made  by  the  decedent  during  his  lifetime  or  otherwise.  The 
appraisers  shall  make  a  report  in  writing,  setting  forth  their  appraisal  of  the 
property  embraced  in  each  legacy,  inheritance,  devise  or  transfer,  including 
any  transfer  made  in  contemplation  of  death,  with  the  testimony  of  the  wit- 
nesses examined  and  such  other  facts  in  relation  to  the  property  and  its  ap- 
praisal as  may  be  requested  by  the  attorney  general,  or  directed  by  the  order 
of  the  probate  court.  Such  report  shall  be  in  writing  and  one  copy  thereof 
shall  be  filed  in  the  probate  court  and  the  others  shall  be  mailed  to  the  attorney 
general  at  his  office  in  the  city  of  St.  Paul,  Minnesota. 

Every  appraiser  shall  be  entitled  to  compensation  at  the  rate  of  $3.00  per 
day,  and  in  extraordinary  cases  such  additional  sum  per  day,  not  exceeding 
$7.00  altogether  as  may  be  allowed  by  the  probate  judge,  for  each  day  actually 
and  necessarily  employed  in  such  appraisal,  and'his  actual  and  necessary  travel- 
ing expenses,  and  such  witnesses  and  the  officer  or  person  serving  any  such 
subpoena  shall  be  entitled  to  the  same  fees  as  are  allowed  witnesses  or  sheriffs 
for  similar  services  in  courts  of  record.  The  compensation  and  fees  claimed 
by  any  person  for  services  performed  under  this  act  shall  be  approved  by  the 
judge  of  probate  who  shall  certify  the  amount  thereof,  to  the  state  auditor, 


558  INHERITANCE   TAXATION. 

who  shall  examine  the  same,  and,  if  found  correct,  he  shall  draw  his  warrant 
upon  the  state  treasury  for  the  amount  thereof  in  favor  of  the  person  entitled 
thereto. 

Such  warrants  shall  be  paid  out  of  the  moneys  appropriated  for  the  payment 
of  the  expenses  of  inheritance  tax  collections.  (Rev.  Laws  Sup.  1909,  p.  263; 
Laws  1911,  p.  279.) 

§  788.    Determination  of  Value  of  Estate  and  Amount  of  Tax. 

Sec.  17.  The  report  of  the  appraisers  shall  be  filed  with  the  probate  court, 
and  from  such  report  and  other  proof  relating  to  any  such  estate  before  the 
probate  court  the  court  shall  forthwith,  as  of  course,  determine  the  true  and 
full  value  of  all  such  estates  and  the  amount  of  tax  to  which  the  same  are 
liable;  or  the  probate  court  may  so  determine  the  full  and  true  value  of  all 
such  estates  and  the  amount  of  tax  to  which  the  same  are  liable  without  ap- 
pointing appraisers.  (Laws  1905,  e.  288;  Eev.  Laws  Sup.  1909,  p.  264.) 

§  789.    Notice  of  Tax  for  Which  Estate  is  Liable. 

See.  18.  The  probate  court  shall  immediately  give  notice,  upon  the  deter- 
mination of  the  value  of  any  inheritance,  devise,  bequest,  legacy,  transfer  or 
gift  which  is  taxable  under  this  act,  and  the  tax  to  which  it  is  liable,  to  all 
parties  known  to  be  interested  therein,  including  the  state  auditor,  attorney 
general  and  the  county  treasurer. 

Such  notice  shall  be  given  by  serving  a  copy  on  the  attorney  of  all  persons 
who  may  have  appeared  by  attorney,  and  as  to  persons  who  have  not  so  ap- 
peared, by  mail,  where  the  addresses  of  the  persons  to  be  notified  are  known 
or  can  be  ascertained,  otherwise  such  notice  shall  be  given  by  publishing  said 
notice  once  in  a  qualified  newspaper.  The  expense  of  such  publication  shall 
be  certified  and  paid  by  the  state  treasurer  in  the  same  manner  as  hereinbefore 
provided  for  the  payment  of  the  fees  and  expenses  of  appraisers.  (Laws  1905, 
c.  288;  Eev.  Laws  Sup.  1909,  p.  264;  Laws  1911,  p.  280.) 

§  790.    Objections  to  Assessment — Reassessment. 

Sec.  19.  Within  thirty  days  after  the  assessment  and  determination  by  the 
probate  court  of  any  tax  imposed  by  this  act,  the  attorney  general,  county 
treasurer  or  any  person  interested  therein,  may  file  with  said  court  objections 
thereto,  in  writing,  and  praying  for  a  reassessment  and  redetermination  of 
such  tax.  Upon  any  objection  being  so  filed  the  probate  court  shall  appoint 
a  time  for  the  hearing  thereof  and  cause  notice  of  such  hearing  to  be  given 
to  the  attorney  general,  county  treasurer  and  all  parties  interested  at  least  ten 
days  before  the  hearing  thereof.  Such  notice  shall  be  served  in  the  manner 
provided  for  in  section  18. 

At  the  time  appointed  in  such  notice  the  court  shall  proceed  to  hear  such 
objections  and  any  evidence  which  may  be  offered  in  support  thereof  or  opposi- 
tion thereto;  and  if,  after  such  hearing,  said  court  shall  be  of  the  opinion 
that  a  reassessment  or  redetermination  of  such  tax  should  be  made,  it  shall, 
by  order,  set  aside  the  assessment  and  determination  theretofore  made  and 
order  a  reassessment  in  the  same  manner  as  if  no  assessment  had  been  made, 
or  the  said  court  may,  without  ordering  a  resubmission  to  appraisers,  set  asido 


MINNESOTA  STATUTE.  559 

the  assessment  and  determination  theretofore  made  and  fix  and  determine  the 
value  of  the  property  embraced  in  any  legacy,  inheritance,  devise  or  transfer 
and  fix  and  determine  the  amount  of  the  tax  thereon  in  accordance  with  the 
appraisal  theretofore  filed,  so  far  as  the  same  is  not  in  dispute,  and  in  accord- 
ance with  the  evidence  introduced  by  the  respective  parties  in  interest  as  to 
any  items  of  the  appraisers'  report  which  may  have  been  objected  to  by  any 
party  interested,  including  the  attorney  general  and  the  personal  representa- 
tives of  the  decedent. 

In  any  case  where  objections  are  filed  by  the  attorney  general  as  hereinbe- 
fore provided  for,  he  shall,  within  ten  days  before  the  time  set  by  the  court 
for  the  hearing  thereof,  file  with  the  clerk  of  the  court  a  bill  of  particulars 
setting  forth  the  items  in  any  such  report  objected  to  and  as  to  which  he  pro- 
poses to  offer  testimony;  he  shall  also  mail  a  copy  thereof,  within  said  time, 
to  the  personal  representative  of  the  decedent  or  the  attorney  or  attorneys  for 
the  latter.  In  case  objections  are  filed  by  any  other  person,  he  or  she  shall 
likewise  file  such  a  bill  of  particulars  with  the  court  and  serve  a  copy  thereof 
upon  the  attorney  general  within  ten  days  after  the  filing  of  the  objections. 
(Laws  1905,  c.  288;  Rev.  Daws  Sup.  1909,  p.  264;  Laws  1911,  p.  2&1.) 

§  791.    Notice  to  County  Attorney  of  Delinquencies — Proceedings  to  En- 
force Tax 

Sec.  20.  If  the  treasurer  of  any  county  shall  have  reason  to  believe  that 
any  tax  is  due  and  unpaid  under  this  act  after  the  refusal  or  neglect  of 
the  persons  liable  therefor  to  pay  the  same,  he  shall  notify,  in  writing,  the 
county  attorney  of  his  county,  of  such  failure  or  neglect,  and  such  county 
attorney,  if  he  have  probable  cause  to  believe  that  such  tax  is  due  and 
unpaid,  shall  apply  to  the  probate  court  for  a  citation,  citing  the  persons 
liable  to  pay  such  tax  to  appear  before  the  court  on  a  day  specified,  not 
more  than  three  months  from  the  date  of  such  citation,  and  show  cause 
why  the  tax  should  not  be  paid.  The  judge  of  the  probate  court,  upon  such 
application,  and  whenever  it  shall  appear  to  him  that  any  such  tax  accruing 
under  this  act  has  not  been  paid  as  required  by  law,  shall  issue  citation, 
and  the  service  of  such  citation,  and  the  time,  manner  and  proof  thereof, 
and  the  hearing  and  determination  thereon,  shall  conform  as  near  as  may 
be  to  the  provisions  of  the  probate  code  of  this  state,  and  whenever  it  shall 
appear  that  any  such  tax  is  due  and  payable  and  the  payment  thereof  cannot 
be  enforced  under  the  provisions  of  this  act  in  said  probate  court,  the 
person  or  corporation  from  whom  the  same  is  due  is  hereby  made  liable  to 
the  state  for  the  amount  of  such  tax,  and  it  shall  be  the  duty  of  the  county 
attorney  of  the  proper  county  to  sue  for  in  the  name  of  the  state  and 
enforce  the  collection  of  such  tax,  and  all  taxes  so  collected  shall  be  forth- 
with paid  into  the  county  treasury.  It  shall  be  the  duty  of  said  county 
attorney  to  appear  for  and  represent  the  county  treasurer  on  the  hearing 
of  such  citation.  (Laws  1905,  c.  288;  Rev.  Laws  Sup.  1909,  p.  264.) 

§  792.    Records  and  Reports  of  Probate  Court — Report  of  Register  of  Deeds. 

Sec.  21.     The  auditor  of  state  shall  furnish  to  each  probate  court  a  book 

which  shall  be  a  public  record,  and  in  which  shall  be  entered  by  the  judge 


560  INHERITANCE   TAXATION. 

of  said  court  the  name  of  every  decedent  upon  whose  estate  an  application 
has  been  made  for  the  issue  of  letters  of  administration,  or  letters  testa- 
mentary or  ancillary  letters,  the  date  and  place  of  death  of  such  decedent, 
names  and  places  of  residence  and  relationship  to  decedent  of  the  heirs  at 
law  of  such  decedent,  the  estimated  value  of  the  property  of  such  decedent, 
names  and  places  of  residence  and  relationship  to  decedent  of  the  heirs 
at  law  of  such  decedent,  the  names  and  places  of  residence  of  the  legatees, 
devisees  and  other  beneficiaries  in  any  will  of  such  decedent,  the  amount  of 
each  legacy,  and  the  estimated  value  of  any  property  devised  therein  and 
to  whom  devised.  These  entries  shall  be  made  from  data  contained  in  the 
papers  filed  on  such  application  or  in  any  proceeding  relating  to  the  estate 
of  the  decedent.  The  judge  of  probate  shall  also  enter  in  such  book  the 
amount  of  the  property  of  any  such  decedent,  as  shown  by  the  inventory 
thereof,  when  made  and  filed  in  his  office,  and  the  returns  made  by  any 
appraisers  appointed  by  him  under  this  act,  and  the  value  of  all  inheritances, 
devises,  bequests,  legacies  and  gifts  inherited  from  such  decedent,  or  given 
by  such  decedent  in  his  will  or  otherwise  as  fixed  by  the  probate  court, 
and  the  tax  assessed  thereon,  and  the  amounts  of  any  receipts  for  payment 
thereof  filed  with  him.  The  state  auditor  shall  also  furnish  forms  for  the 
reports  to  be  made  by  such  judge  of  probate,  which  shall  correspond  with 
the  entries  to  be  made  in  such  book.  Each  judge  of  probate  shall,  on  the 
first  day  of  January,  April,  July  and  October  of  each  year,  make  a  report 
in  duplicate  upon  the  forms  furnished  by  the  state  auditor  containing  all 
the  data  and  matters  required  to  be  entered  in  such  book,  one  of  which 
shall  be  immediately  delivered  to  the  county  treasurer  and  the  other  trans- 
mitted to  the  auditor  of  the  state.  The  register  of  deeds  of  each  county 
shall,  at  the  same  time,  make  reports  in  duplicate  to  the  auditor  of  state, 
containing  a  statement  of  any  conveyance  filed  or  recorded  in  his  office 
of  any  property  which  appears  to  have  been  made  or  intended  to  take  effect 
in  possession  or  enjoyment  after  the  death  of  the  grantor  or  vendor,  with 
the  name  and  place  of  residence  of  the  vendor  or  vendee,  and  the  descrip- 
tion of  the  property  transferred,  as  shown  by  such  instrument,  one  of 
which  duplicates  shall  be  immediately  delivered  to  the  county  treasurer 
and  the  other  transmitted  to  the  auditor  of  state.  (Laws  1905,  c.  288;  Eev. 
Laws  Sup.  1909,  p.  264.) 

§  793.     Stipulation  by  Attorney  General  of  Amount  of  Tax  to  be  Paid. 

Sec.  21-A.  The  attorney  general,  by  and  with  the  consent  and  approval 
of  the  state  auditor,  in  case  of  the  estate  of  a  nonresident  decedent  whose 
estate  has  not  been  probated  in  this  state,  and  the  consent  and  approval  of 
the  probate  judge  in  the  case  of  any  estate  probated  in  this  state,  expressed 
in  writing,  is  hereby  authorized  and  empowered  to  enter  into  an  agreement 
with  the  trustees  of  any  estate  in  which  remainders  or  expectant  estates 
are  of  such  a  nature  or  so  disposed  and  circumstanced  that  the  taxes  are 
not  presently  payable  or  where  the  interests  of  the  legatees  or  devisees  are 
or  were  not  ascertainable  under  the  provisions  of  this  chapter,  at  the  time 
lixed  for  the  appraisal  and  determination  of  the  tax  on  estates  and  interests 
transferred  in  fee,  and  to  thereby  compound  the  tax  upon  such  transfers  upon 


MINNESOTA  STATUTE.  561 

such  terms  as  are  deemed  equitable  and  expedient;  to  grant  a  discharge  to 
said  trustees  on  account  thereof  upon  payment  of  the  taxes  provided  for 
in  such  composition  agreement;  provided,  however,  that  no  such  composition 
shall  be  conclusive  in  favor  of  said  trustees  as  against  the  interests  of  such 
cestui  que  trust  as  may  possess  either  present  rights  of  enjoyment,  or  fixed, 
absolute  or  indefeasible,  rights  of  future  enjoyment  or  of  such  as  would 
possess  such  rights  in  the  event  of  the  immediate  termination  of  any  par- 
ticular estate,  unless  they  consent  thereto  either  personally  or  by  duly  author- 
ized attorney,  when  competent,  or  by  guardian  or  committee.  Composition 
agreements  made,  affected  and  entered  into  under  the  provisions  of  this 
section  shall  be  executed  in  triplicate,  and  one  copy  thereof  filed  in  the 
probate  court  of  the  county  in  which  the  tax  is  to  be  paid;  one  copy  in  the 
office  of  the  attorney  general  and  one  copy  shall  be  delivered  to  the  persons 
paying  the  tax  thereunder. 

The  attorney  general  shall  not  consent  to  the  assignment  or  delivery  of 
any  property  embraced  in  any  legacy,  devise  or  transfer  from  a  nonresident 
decedent  to  a  nonresident  trustee  thereof  under  the  provisions  of  section  11, 
where  the  property  embraced  in  such  legacy,  devise  or  transfer  ia  so  cir- 
cumstanced and  disposed  of  that  the  tax  thereon  cannot  be  presently  ascer- 
tained, but  is  so  circumstanced  and  disposed  of  as  to  authorize  him  to  enter 
into  a  composition  agreement  with  reference  to  the  tax  on  any  estate  or 
interest  therein  as  herein  provided,  until  the  tax  on  the  transfer  of  any 
such  estate  or  interest  shall  have  been  compounded  and  the  tax  paid  as 
hereinbefore  provided  for;  or  in  lieu  thereof  the  trustee  or  other  person 
to  whom  the  possession  of  such  property  is  delivered  shall  have  made,  exe- 
cuted and  delivered  to  the  attorney  general,  a  bond  to  the  state  of  Minnesota 
in  an  amount  equal  to  the  amount  of  tax  which  in  any  contingency  may 
become  due  and  owing  to  the  state  on  account  of  the  transfer  of  such 
property,  such  bond  to  be  approved  by  the  attorney  general  and  conditioned 
for  the  payment  to  the  state  of  Minnesota  of  any  tax  which  may  accrue 
to  the  state  under  this  act  on  the  subsequent  transfer  or  delivery  of  the 
possession  of  such  property  to  any  person  beneficially  entitled  thereto.  The 
provisions  of  sections  4523,  4524  and  4525,  Revised  Laws  1905,  shall  apply 
to  the  execution  of  said  bond  and  the  qualification  of  the  surety  or  sureties 
thereon. 

No  property  having  its  situs  in  this  state  embraced  in  any  legacy  or 
devise  bequeathed  or  devised  to  a  nonresident  trustee  and  circumstanced  or 
disposed  of  as  last  hereinbefore  described,  shall  be  decreed  and  distributed 
by  any  court  of  this  state  to  such  nonresident  trustee  until  he  shall  have 
compounded  and  paid  the  tax  as  provided  for  in  this  section;  or  in  lieu 
thereof  given  a  bond  to  the  state  as  provided  for  in  this  section  with  reference 
to  transfers  of  property  owned  by  nonresident  decedents.  (Laws  1911,  p. 
282.) 

§  794.    Power  of  Attorney  General  to  Issue  Citations  and  Examine  Books 

and  Records. 

Sec.  21-B.     The  attorney  general  is  hereby  authorized  and  empowered  to 
issue  a  citation  to  any  person  whom  he  may  believe  or  have  reason  to  believe 
36 


562  INHERITANCE  TAXATION. 

has  any  knowledge  or  information  concerning  any  property  which  he  believes 
or  has  reason  to  believe  has  been  transferred  by  any  person  and  as  to  which 
there  is  or  may  be  a  tax  due  to  the  state  under  the  provisions  of  this  act, 
and  by  such  citation  require  such  person  to  appear  before  him  at  a  time 
and  place  to  be  designated  in  such  citation  and  testify  under  oath  as  to 
any  fact  or  information  within  his  knowledge  touching  the  quantity,  value 
and  description  of  any  such  property  and  its  ownership  and  the  disposition 
thereof  which  may  have  been  made  by  any  person,  and  to  produce  and 
submit  to  the  inspection  of  the  attorney  general,  any  books,  records,  accounts 
or  documents  in  the  possession  of  or  under  the  control  of  any  person  so 
cited.  The  attorney  general  shall  also  have  power  to  inspect  and  examine 
the  books,  records  and  accounts  of  any  person,  firm  or  corporation,  including 
the  stock  transfer  books  of  any  corporation,  for  the  purpose  of  acquiring 
any  information  deemed  necessary  or  desirable  by  him  for  the  proper  enforce- 
ment of  this  act  and  the  collection  of  the  full  amount  of  the  tax  which  may 
be  due  to  the  state  hereunder.  Any  and  all  information  acquired  by  the 
attorney  general  under  and  by  virtue  of  the  means  and  methods  provided 
for  by  this  section  shall  be  deemed  and  held  by  him  as  confidential  and 
shall  not  be  disclosed  by  him  except  so  far  as  the  same  may  be  necessary 
for  the  enforcement  and  collection  of  the  inheritance  tax  provided  for  by 
this  act. 

Eefusal  of  any  person  to  attend  before  the  attorney  general  in  obedience 
to  any  such  citation,  or  to  testify,  or  produce  any  books,  accounts,  records 
or  documents  in  his  possession  or  under  his  control  and  submit  the  same  to 
inspection  of  the  attorney  general  when  so  required,  may,  upon  application 
of  the  attorney  general,  be  punished  by  any  district  court  in  the  same  manner 
as  if  the  proceedings  were  pending  in  such  court. 

Witnesses  so  cited  before  the  attorney  general,  and  any  sheriff  or  other 
officer  serving  such  citation  shall  receive  the  same  fees  as  are  allowed  in 
civil  actions;  to  be  paid  by  the  attorney  general  out  of  the  funds  appro- 
priated for  the  enforcement  of  this  act.  (Laws  1911,  p.  283.) 

§  795.     Refund  of  Tax. 

Sec.  21-C.  Whenever,  under  the  provisions  of  section  3  of  this  act,  as 
amended,  any  person  or  corporation  shall  be  entitled  to  a  return  of  any 
part  of  a  tax  previously  paid,  he  shall  make  application  to  the  attorney 
general  for  a  determination  of  the  amount  which  he  is  entitled  to  have  re- 
turned, and  on  such  application  shall  furnish  the  attorney  general  with 
affidavits  and  other  evidence  showing  the  facts  which  entitle  him  to  such 
return  and  the  amount  he  is  entitled  to  hav»  returned.  The  attorney  general 
shall  thereupon  determine  the  amount,  if  any,  which  the  applicant  is  entitled 
to  have  returned,  and  shall  certify  his  findings  in  regard  thereto  to  the 
state  auditor  who  shall  thereupon  issue  his  warrant  on  the  state  treasurer 
for  the  amount  so  certified  by  the  attorney  general  and  deliver  such  warrant 
to  the  persons  entitled  to  the  refund. 

It  shall  be  the  duty  of  the  state  treasurer  to  pay  such  warrants  out  of 
any  funds  in  the  state  treasury  not  otherwise  appropriated.  The  moneys 


MINNESOTA  STATUTE.  563 

necessary  to  pay  such  warrants  are  hereby  appropriated  out  of  any  moneys 
in  the  state  treasury  not  otherwise  appropriated. 

Any  person  aggrieved  by  the  determination  of  the  attorney  general  may 
appeal  to  the  district  court  in  the  manner  and  with  the  same  effect  as  is 
provided  for  in  section  11.  (Laws  1911,  p.  284.) 

§  796.     Duty  of  State  Auditor  and  Treasurer. 

Sec.  21-D.  On  or  before  the  first  of  November  in  each  year  the  state 
auditor  shall  compute  the  amount  of  inheritance  tax  which  has  been  paid 
into  the  state  treasury  by  the  county  treasurers  of  the  several  counties  of 
this  state,  from  estates  of  residents  thereof,  during  the  preceding  fiscal 
year  ending  July  31st,  and  thereupon  draw  his  warrant  on  the  state  treasurer 
in  favor  of  each  county  from  which  any  tax  shall  have  been  received  during 
the  fiscal  year  ending  July  31st  next  preceding,  for  ten  per  cent  of  the 
amount  of  the  inheritance  tax  money  so  received  from  each  such  county 
respectively,  less  ten  per  cent  of  any  tax  which  has  been  returned  under 
the  provisions  of  the  last  preceding  section  and  which  was  originally  paid 
to  the  county  treasurer  of  any  such  county,  and  transmit  the  same  to  the 
county  auditor  of  each  county,  to  be  placed  to  the  credit  of  the  county 
revenue  fund;  provided,  however,  that  the  provisions  of  this  section  shall 
apply  only  to  such  moneys  as  shall  be  received  as  a  tax  on  transfers  from 
persons  who  shall  die  subsequent  to  the  passage  of  this  amendatory  act. 

It  shall  be  the  duty  of  the  state  treasurer  to  pay  such  warrants  out  of 
any  funds  in  the  state  treasury  not  otherwise  appropriated.  The  moneys 
necessary  to  pay  such  warrants  are  hereby  appropriated  out  of  any  moneys 
in  the  state  treasury  not  otherwise  appropriated.  (Laws  1911,  p.  284.) 

§  797.     Seal  of  Attorney  General. 

Sec.  21-E.  The  attorney  general  shall  provide  himself  with  a  seal  whereon 
shall  be  inscribed  the  words: 

"Attorney  General,  State  of  Minnesota,  Inheritance  Tax." 
All  his  formal   official  acts   done   and  performed   under   the   provisions   of 
this  act  shall  be  authenticated  with  such  seal.     (Laws  1911,  p.  286.) 

§  798.    Assistant  Attorney  General  in  Inheritance  Tax  Matters. 

Sec.  21-F.  The  attorney  general  is  hereby  authorized  to  designate  one  of 
his  assistants  as  "Assistant  Attorney  General  in  Charge  of  Inheritance  Tax 
Matters."  Such  designation  shall  be  in  writing  and  filed  in  the  office  of  the 
secretary  of  state  and  shall  continue  in  force  until  revoked  by  the  attorney 
general.  The  assistant  so  designated,  so  long  as  such  designation  remains 
unrevoked,  shall  have  and  may  exercise  all  the  rights,  powers  and  privileges 
conferred  on  the  attorney  general  by  the  provisions  of  this  act  and  all  the 
duties  and  obligations  hereby  imposed  upon  the  attorney  general  are  likewise 
imposed  upon  the  assistant  so  designated.  (Laws  1911,  p.  285.) 

§  799.     Time  When  Act  Takes  Effect. 

Sec.  21-G.  This  act  (sees.  3,  11,  13,  14,  15,  16,  18,  19,  21A,  21B,  210, 
21D,  21E,  21F)  shall  take  effect  and  be  in  force  from  and  after  its  passage. 
Approved  April  18,  1911.  (Laws  1911,  p.  2S5.) 


564  INHERITANCE  TAXATION. 

§  800.    Repeal  of  Inconsistent  Statutes. 

Sec.  22.  All  acts  and  parts  of  acts  of  this  state  relating  to  the  taxation 
of  inheritances,  devises,  bequests,  legacies  and  gifts,  so  far  as  the  same  are 
inconsistent  with  the  provisions  of  this  act,  are  hereby  repealed.  (Laws 
1905,  c.  288;  Eev.  Laws  Sup.  1909,  p.  265.) 

§  801.    Validity  of  Previous  Proceedings. 

Sec.  23.  In  all  probate  proceedings  in  any  of  the  probate  courts  in  this 
state  where  a  general  inventory  of  the  property  belonging  to  the  estate  of 
a  deceased  person,  has  heretofore  been  duly  made  and  filed,  and  the  regular 
and  due  appraisal  of  the  property  in  or  belonging  to  such  estate  has  here- 
tofore been  actually  made  and  the  appraisers'  certificate  thereof,  duly  filed 
in  the  proper  probate  office,  and  the  total  value  of  such  property  as  thus 
appraised  is  given  as  less  than  ten  thousand  dollars,  all  such  probate  pro- 
ceedings and  all  interlocutory  and  final  decrees  made  therein,  and  the  records 
of  any  such  decrees  are  hereby  declared  legal  and  valid  and  such  proceedings, 
decrees  and  records  shall  have  full  force  and  effect  as  evidence  in  all  the 
courts  of  this  state,  as  against  the  objection  that  no  copy  of  the  citation 
or  order  for  hearing  on  the  petition  for  letters  testamentary,  or  of  admin- 
istration, or  ancillary  letters,  was  served  upon  the  county  treasurer  of  the 
county  in  which  such  proceedings  were  had,  prior  to  the  time  of  such  hearing. 
(Laws  1905,  c.  288;  Eev.  Laws  Sup.  1909,  p.  265.) 

§  802.    Effect  of  This  Act  on  Pending  Proceedings. 

Sec.  24.  This  act  shall  not  affect  or  apply  to  any  action  or  proceeding 
now  pending  in  any  of  the  courts  of  this  state  other  than  probate  courts. 
(Laws  1907,  c.  444;  Eev.  Laws  Sup.  1909,  p.  266.) 


MISSOURI  STATUTE.  565 

CHAPTER  XXXIX. 

MISSOURI  STATUTE. 

(Revised  Statutes  of  1899,  sees.  299-322;  Laws  of  1901,  p.  43;  Laws  of  1903,  p. 
52;  Ann.  Stats.  1906,  pp.  446-456.) 

§  804.  Transfers  Subject  to  Tax — Eates — Lien  of  Tax — Persons  Liable. 

§  805.  Time  for  Payment — Interest  and  Discount — Lien — Bond  of  Executor. 

§  806.  Payment  and  Report  by  Collector  to  State  Auditor. 

§  807.  Revenue  to  be  Known  as  "State  Seminary  Moneys." 

§  808.  Revenue  to  be  Known  as    "Educational  Fund." 

§  809.  Payment  of  Tax  on  Reversions,  Remainders  and  Expectancies. 

§  810.  Bequests  to   Executors  in  Lieu  of  Commissions. 

§  811.  Collection   of  Tax  by  Executor. 

§  812.  Payment  of  Tax  on  Gift  for  a  Limited  Period. 

§  813.  Payment  by  Executor  to  Collector  of  Revenue — Receipts. 

§  814.  Refund  of  Tax. 

§  816'.  Executor  to  Notify  Probate  Judge  of  Taxable  Transfers. 

§  816.  Transfer  of  Stocks  or  Loans  by  Foreign  Executor. 

§  817.  Appraisers  and  Appraisement. 

§  818.  Determination  of  Value  of  Estate  and  Assessment  of  Tar. 

§  819.  Reappraisement. 

§  820.  Appraiser  Taking  Illegal  Fees — Penalty. 

§  821.  Jurisdiction  of  Probate  Court — Prosecuting  Attorney  to  Represent 

State. 

§  822.  Records  to  be  Kept  by  Probate  Judge. 

§  823.  Reports  to  be  Made  by  Probate  Judge  and  County  Recorder. 

§  824.  Notice  to  Collector  of  Unpaid  Tax — Proceedings  for  Collection. 

§  S25.  Receipts  for  Payment  of  Tax. 

§  826.  Commissions  for  Collecting  Tax. 

§  827.  Repeal  of  Inconsistent  Statutes. 

§  804.     Transfers  Subject  to  Tax — Rates — Lien  of  Tax — Persons  Liable. 

Sec.  299.  All  property  which  shall  pass  by  will,  or  by  the  intestate 
laws  of  this  state  from  any  person  who  may  die  seised  or  possessed  of 
the  same  while  a  resident  of  this  state,  or,  if  decedent  was  not  a  resident 
of  this  state  at  the  time  of  death,  which  property  or  any  part  thereof 
shall  be  within  this  state,  or  any  interest  therein  or  income  therefrom,  which 
shall  be  transferred  by  deed,  grant,  bargain,  sale  or  gift,  made  or  intended 
to  take  effect  in  possession  or  enjoyment  after  the  death  of  the  grantor, 
bargainer,  vendor  or  donor,  to  any  person  or  persons,  or  to  any  body  politic 
or  corporate,  either  directly  or  in  trust  or  otherwise,  or  by  reason  whereof 
any  person  or  body  politic  or  corporate  shall  become  beneficially  entitled 
in  possession  or  expectancy,  to  any  property  or  the  income  thereof,  other 
than  to  or  for  the  use  of  the  father,  mother,  husband,  wife,  legally  adopted 
children,  or  direct  lineal  descendant  of  the  testator,  intestate,  grantor, 


566  INHERITANCE  TAXATION. 

bargainer,  vendor  or  donor,  except  property  conveyed  for  some  educational, 
charitable  or  religious  purpose  exclusively,  shall  be  and  i»  subject  to  the 
payment  of  a  collateral  inheritance  tax  of  five  dollars  for  each  and  every 
one  hundred  dollars  of  the  clear  market  value  of  such  property,  and  at 
and  after  the  same  rate  for  every  less  amount,  to  be  paid  to  the  collector 
of  revenue  of  the  proper  county,  and  for  the  purposes  of  this  article, 
the  city  of  St.  Louis  shall  be  affected  through  its  corresponding  officers 
as  if  it  were  a  county,  for  the  use  of  the  state  as  hereinafter  provided; 
and  for  the  enforcement  and  collection  of  such  tax  there  is  hereby  created 
against  the  property  affected  thereby  a  first  lien  in  favor  of  the  state 
of  Missouri,  upon  which  a  civil  action  may  be  prosecuted  in  any  court 
having  proper  jurisdiction;  and  all  heirs,  next  of  kin,  legatees  and  devisees, 
administrators,  executors  and  trustees,  grantees,  vendees  and  donees  shall 
be  liable  for  any  and  all  such  ta.xes  until  the  same  shall  have  been  paid 
as  'hereinafter  directed;  provided,  that  all  collateral  inheritance  taxes  shall 
be  sued  for  within  five  years  after  they  are  due  and  legally  demandable, 
otherwise  they  shall  cease  to  be  a  lien  as  against  any  purchasers  of  the 
property;  provided,  further,  that  the  word  "property,"  as  used  in  this  sec- 
tion, shall  be  taken  to  mean  the  property  or  interest  therein  passing  or 
transferred  to  individual  legatees,  devisees,  heirs,  next  of  kin,  grantees, 
vendees  or  donees,  and  not  as  the  property  or  interest  therein  of  the  testator, 
intestate,  grantor,  bargainer,  vendor  or  donor.  (Eev.  Stats.  1899,  sec.  299; 
Ann.  Stats.  1906,  p.  446.) 

§  805.    Time  for  Payment — Interest  and  Discount — Lien — Bond  of  Executor. 

Sec.  300.  All  taxes  imposed  by  this  act,  except  as  hereinafter  provided, 
shall  be  due  and  payable  at  .the  death  of  the  person  rendering  such  prop- 
erty subject  to  such  taxation,  and  interest,  at  the  same  rate  as  is  now  pro- 
vided by  law  for  delinquent  taxes,  shall  be  charged  and  collected  thereon 
for  such  time  as  said  tax  is  not  paid;  provided,  that  if  said  tax  is  paid 
within  one  year  from  the  accruing  thereof  no  interest  shall  be  charged  or 
collected  thereon,  and  if  said  tax  is  paid  within  six  months  from  the  accru^ 
ing  thereof  a  discount  of  five  per  cent  shall  be  allowed  and  deducted  from 
said  tax;  provided,  further,  that  if  by  reason  of  claims  made  upon  the  estate, 
necessary  litigation  or  other  unavoidable  cause  of  delay  the  estate  of  the 
decedent  or  any  part  thereof  cannot  be  settled  up  at  the  end  of  the  year 
from  his  or  her  decease,  the  probate  court,  or  the  judge  thereof  in  vacation, 
may  make  necessary  extensions  of  time  for  the  payment  of  such  taxes,  but 
no  single  extension  shall  exceed  one  year,  and  in  such  cases  only  six  per 
cent  per  annum  shall  be  charged  upon  the  said  tax  from  the  death  of  the 
decedent  to  the  expiration  of  the  period  for  which  the  extension  of  time 
was  granted,  after  which  interest,  at  the  same  rate  as  is  now  provided  by 
law  for  delinquent  taxes  shall  be  charged;  and  in  all  such  cases  the  tax 
on  real  estate  shall  remain  a  lien  on  the  real  estate  on  which  the  same  is 
chargeable  until  paid,  and  the  executors,  administrators  or  trustees  shall 
give  a  bond,  to  the  people  of  the  state  of  Missouri,  in  a  penalty  of  three 
times  the  amount  of  the  said  tax,  with  such  sureties  as  the  probate  judge 
of  the  proper  county  may  approve,  conditioned  for  the  payment  of  said  tax, 


MISSOURI  STATUTE.  567 

and  interest  thereon,  at  the  expiration  of  such  period,  which  bond  shall 
be  filed  in  the  office  of  said  probate  judge.  (Kev.  Stats.  1899,  sec.  300; 
Ann.  Stats.  1906,  p.  447.) 

§  806.    Payment  and  Report  by  Collector  to  State  Auditor. 

Sec.  301.  The  collector  of  each  county  shall,  on  or  before  the  fifteenth 
day  of  each  month,  pay  to  the  state  treasurer  all  taxes,  collected  or  received 
by  him,  under  the  provisions  of  this  act,  before  the  first  day  of  said  month, 
deducting  therefrom  his  commissions,  as  provided  in  section  321  of  this 
article,  and  all  lawful  disbursements  made  by  him,  in  accordance  with  the 
provisions  of  this  article,  upon  the  certificate  of  the  probate  judge  of  his 
county  of  which  collection  and  payment  he  shall  make  a  report  under  oath 
to  the  state  auditor,  on  or  before  the  fifth  day  of  each  month,  stating  for 
what  estate  paid,  and  in  such  form  and  containing  such  particulars  as  the 
state  auditor  may  prescribe;  and  for  any  failure  to  make  such  monthly 
payments  he  shall  be  subject  to  the  penalty  prescribed  by  section  seven 
thousand  six  hundred  and  thirty-six  (7636)  of  the  Eevised  Statutes  of  1889. 
(Eev.  Stats.  1899,  sec.  301;  Ann.  Stats.  1906,  p.  448.) 

§  807.    Revenue  to  be  Known  as  "State  Seminary  Moneys." 

Sec.  302.  The  moneys  received  by  the  state  treasurer  under  the  provisions 
of  this  article  shall  be  deposited  in  the  state  treasury  to  the  credit  of  the 
fund  now  existing  in  the  state  treasury,  and  known  as  the  "state  seminary 
moneys,"  for  the  maintenance,  support  and  better  equipment  of  the  build- 
ings, apparatus,  books,  instruction,  etc.,  of  the  university  of  the  state  of 
Missouri,  to  an  amount  not  exceeding  in  any  one  year  the  equivalent  of 
one-tenth  of  one  mill  upon  every  dollar,  of  the  assessed  valuation  of  taxable 
property  of  this  state  for  the  said  year;  provided,  that  one-fifth  of  all  such 
moneys  so  received  shall  be  devoted  to  the  use  of  the  school  of  mines  and 
metallurgy,  a  department  of  the  university;  provided,  further,  that  if  the 
net  amount  deposited  in  any  one  year  by  the  state  treasurer  under  the  pro- 
visions of  this  act,  to  the  credit  of  the  "state  seminary  moneys"  be  not 
equivalent  to  one-tenth  of  one  mill  upon  every  dollar  of  the  assessed  valua- 
tion of  taxable  property  of  this  state  for  the  said  year,  it  shall  be  the  duty 
of  the  state  treasurer  to  make  good  this  deficiency  out  of  the  first  moneys 
received  under  the  provisions  of  this  article  in  the  next  succeeding  year; 
provided,  further,  that  all  said  moneys  shall  be  disbursed  in  pursuance  of 
regular  appropriations  of  the  general  assembly,  in  accordance  with  the  pro- 
visions of  section  five  thousand  six  hundred  and  ninety-one  (5691)  of  the 
Revised  Statutes  of  1889.  (Rev.  Stats.  1899,  sec.  302;  Amended  Laws  1901,  p. 
43;  Ann.  Stats.  1906,  p.  448.) 

§  808.    Revenue  to  be  Known  as  "Educational  Fund." 

Sec.  303.  The  moneys  received  by  the  state  treasurer  under  the  provisions 
of  this  article  which  shall  exceed  in  any  one  year  the  amount  required  by 
section  302  of  this  article  to  be  deposited  to  the  credit  of  the  "state  seminary 
moneys,"  shall  be  deposited  in  the  state,  treasury  to  the  credit  of  a  fund  to 
be  known  as  the  "educational  fund,"  which  is  hereby  created  and  estab- 


5C8  INHERITANCE  TAXATION. 

lished.  The  moneys  deposited  in  the  said  fund  shall  be  appropriated  by  the 
general  assembly  for  public  educational  purposes.  (Rev.  Stats.  1899,  aec. 
303;  Ann.  Stats.  1906,  p.  449.) 

§  809.     Payment  of  Tax  on  Reversions,  Remainders  and  Expectancies. 

Sec.  304.  When  any  grant,  gift,  legacy  or  inheritance  upon  which  a  tax 
is  imposed  by  section  299  of  this  article,  shall  be  a  remainder,  reversion  or 
other  expectancy,  real  or  personal,  the  tax  on  such  estate  shall  not  be  pay- 
able, nor  interest  begin  to  run  thereon,  until  the  person  or  persons  liable 
for  the  same  shall  come  into  actual  possession  of  such  estate,  by  the  termina- 
tion of  the  estate  for  life  or  years,  and  the  tax  shall  be  assessed  upon  the 
value  of  the  estate  at  the  time  the  right  of  possession  accrues  to  the  owner 
as  aforesaid;  provided,  that  in  all  such  cases  the  tax  on  real  estate  shall 
remain  a  lien  on  the  real  estate  on  which  the  same  is  chargeable  until  paid; 
provided,  further,  that  the  person  or  persons,  or  body  politic  or  corporate 
beneficially  interested  in  the  property  as  aforesaid  shall  make  a  full,  veri- 
fied return  of  said  property  to  the  probate  judge  of  the  proper  county  and 
file  the  same  in  his  office  within  one  year  from  the  death  of  the  decedent, 
and  within  that  period  give  a  bon'd  in  form  and  to  the  effect  prescribed  in 
section  300  of  this  article,  conditioned  for  the  payment  of  said  tax  at  such 
time  or  period  as  the  right  of  possession  shall  accrue  to  the  owner  or  the 
representatives  of  said  owner  as  aforesaid,  and  in  case  of  failure  so  to  do, 
the  tax  shall  be  immediately  payable  and  collectible  on  the  clear  market 
value  of  the  estate,  to  be  determined  as  hereinafter  provided;  provided, 
further,  that  the  owner  shall  have  the  right  to  pay  the  tax  at  any  time 
prior  to  his  or  her  coming  into  possession,  and  in  such  cases,  the  tax  shall 
be  assessed  in  the  manner  hereinafter  provided,  on  the  value  of  the  estate 
at  the  time  of  the  payment  of  the  tax,  after  deducting  the  value  of  the  life 
estate  or  estates  for  years.  (Rev.  Stats.  1899,  sec.  304;  Ann.  Stats.  1906,  p. 
449.) 

§  810.    Bequests  to  Executors  in  Lieu  of  Commissions. 

Sec.  305.  Where  a  testator  bequeaths  or  devises  property  to  one  or  more 
executors  or  trustees  in  lieu  of  their  commissions  or  allowances,  which  prop- 
erty otherwise  would  be  liable  to  said  tax,  or  appoints  them  his  residuary 
legatees,  and  said  bequests,  devises  or  residuary  legacies  exceed  what  would 
be  a  fair  compensation  for  their  services,  such  excess  shall  be  subject  to 
the  payment  of  the  said  tax;  the  rate  of  compensation  to  be  fixed  by  the 
probate  court  having  jurisdiction  in  the  case.  (Rev.  Stats.  1899,  sec.  305; 
Ann.  Stats.  1906,  p.  450.) 

§  811.     Collection  of  Tax  by  Executor. 

Sec.  306.  Any  administrator,  executor  or  trustee  having  in  charge  or  trust 
any  legacy  or  property  for  distribution,  subject  to  the  said  tax,  shall  deduct 
the  amount  of  the  tax  therefrom,  or  if  the  legacy  or  property  be  not  money, 
he  shall  demand  payment  of  the  amount  of  the  tax  thereon  upon  the  ap- 
praised value  thereof  from  the  legatee  or  person  entitled  to  such  property, 
and  he  shall  not  deliver,  or  be  compelled  to  deliver,  any  specific  legacy  or 


MISSOURI  STATUTE.  569 

property  subject  to  tar  until  he  shall  have  collected  the  tax  thereon;  and 
in  case  of  neglect  or  refusal  on  the  part  of  said  legatee  or  person  to  pay 
the  same,  such  specific  legacy  or  property,  or  so  much  thereof  as  shall  be 
necessary,  shall  be  sold  by  such  administrator,  executor  or  trustee  at  public 
sale,  after  notice  to  such  legatee  or  person,  and  the  balance  that  may  be 
left  in  the  hands  of  the  administrator,  executor  or  trustee,  after  deducting 
the  amount  of  the  said  tax,  shall  be  distributed,  as  is  or  may  be  directed  by 
law;  and  whenever  any  such  legacy  or  property  shall  be  charged  upon  or 
payable  out  of  real  estate,  the  heir  or  devisee  before  paying  the  same,  shall 
deduct  the  amount  of  the  said  tax  therefrom,  and  pay  the  amount  so  de- 
ducted to  the  executor  or  other  trustee,  and  the  same  shall  remain  a  charge 
on  such  real  estate  until  paid,  and  the  payment  thereof  shall  be  enforced 
by  the  executor  or  other  trustee  in  the  same  manner  that  the  payment  of 
such  legacy  or  property  might  be  enforced,  or  by  the  prosecuting  attorney  of 
the  proper  county  as  provided  in  section  319  of  this  article.  (Rev.  Stats. 
1899,  sec.  306;  Ann.  Stats.  1906,  p.  450.) 

§  812.     Payment  of  Tax  on  Gift  for  a  Limited  Period. 

Sec.  307.  If  the  legacy  or  property  subject  to  the  tax  imposed  by  this 
article  be  given  in  money  to  any  person  for  a  limited  period,  the  executor 
or  other  trustee  shall  retain  the  tax  upon  the  whole  amount,  but  if  it  be 
not  in  money,  he  shall  make  application  to  the  court  having  jurisdiction  of 
an  accounting  by  him,  to  make  an  apportionment,  if  the  case  require  it,  of 
the  sum  to  be  paid  into  his  hands  by  such  legatee  or  person,  and  for  such 
further  action  relative  thereto  as  the  case  may  require.  (Rev.  Stats.  1899, 
sec.  307;  Ann.  Stats.  1906,  p.  450.) 

§  813.    Payment  by  Executor  to  Collector  of  Revenue — Receipts. 

Sec.  308.  Every  sum  of  money  retained  by  an  executor,  administrator  or 
other  trustee,  or  paid  into  his  hands,  for  any  tax  imposed  by  this  article  on 
any  property,  shall  be  paid  by  him  within  thirty  days  thereafter,  to  the 
collector  of  revenue  of  the  county  in  which  the  probate  court,  having  juris- 
diction of  the  estate  or  accounts,  is  situated,  and  the  said  collector  shall 
give,  and  every  executor,  administrator  or  other  trustee  shall  take  duplicate 
receipts  from  him  of  such  payment,  one  of  which  receipts  he  shall  im- 
mediately send  to  the  state  treasurer,  whose  duty  it  shall  be  to  charge 
the  collector  so  receiving  the  tax,  with  the  amount  thereof,  and  shall 
seal  said  receipt  with  the  seal  of  his  office  and  countersign  the  same 
and  return  it  to  the  executor,  administrator  or  other  trustee,  whereupon 
it  shall  be  a  proper  voucher  in  the  settlement  of  his  accounts,  but  an 
executor,  administrator  or  other  trustee  shall  not  be  entitled  to  credits 
in  his  accounts,  nor  be  discharged  from  liability  for  such  tax,  unless 
he  shall  produce  a  receipt  so  sealed  and  countersigned  by  the  state 
treasurer,  or  a  copy  thereof  certified  by  him.  (Rev.  Stats.  1899,  sec.  308; 
Ann.  Stats.,  1906,  p.  450.) 

§  814.    Refund  of  Tax. 

Sec.  309.  Whenever  any  debts  shall  be  proven  against  the  estate  of  a 
decedent,  after  the  payment  of  legacies  or  distribution  of  property  from 


570  INHERITANCE   TAXATION. 

which  the  said  tax  has  been  deducted,  or  upon  which  it  has  been  paid, 
and  a  refund  is  made  by  the  legatee,  devisee,  heir  or  next  of  kin,  a 
proportion  of  the  tax  so  paid  shall  be  repaid  to  him  by  the  executor, 
administrator  or  other  trustee,  if  the  said  tax  has  not  been  paid  to  the 
county  collector  or  by  the  county  collector  if  the  tax  has  been  paid  to 
him.  The  county  collector  shall  pay  such  sums,  upon  the  order  of  the 
probate  judge,  out  of  any  money  that  he  has  in  his  possession  or  shall 
receive  on  account  of  the  tax  imposed  by  the  provisions  of  this  article. 
The  state  auditor  shall  credit  the  county  collector  with  all  such  sums 
paid  by  him  upon  the  order  of  the  probate  judge.  (Rev.  Stats.  1899, 
sec.  309;  Ann.  Stats.  1906,  p.  451.) 

§  815.    Executor  to  Notify  Probate  Judge  of  Taxable   Transfers. 

Sec.  310.  Whenever  any  of  the  real  estate  of  which  any  decedent  may 
die  seised  shall  be  subject  to  the  tax  provided  by  this  article,  it  shall 
be  the  duty  of  the  executors,  administrators  or  other  trustees  to  give 
information  thereof  in  writing  to  the  probate  judge  of  the  court  having 
jurisdiction  of  the  estate  of  the  decedent,  within  six  months  after  they 
undertake  the  execution  of  their  expected  duties,  or  if  the  fact  be  not 
known  to  them  within  that  period,  within  one  month  after  the  same 
shall  'have  come  to  their  knowledge,  and  it  shall  be  the  duty  of  the 
owners  of  such  estate,  immediately  upon  the  vesting  of  the  estate,  to  give 
information  thereof,  in  writing,  to  the  probate  judge  aforesaid.  (Rev. 
Stats.  1899,  sec.  310;  Ann.  Stats.  1906,  p.  451.) 

§  816.     Transfer  of  Stock  or  Loans  by  Foreign  Executor. 

Sec.  3>11.  Whenever  any  foreign  executor,  administrator  or  other  trustee 
shall  assign  or  transfer  any  stocks  or  loans  in  this  state,  stating  [stand- 
ing] in  the  name  of  a  decedent,  or  in  trust  for  a  decedent,  which  shall 
be  liable  for  the  tax  imposed  by  the  provisions  of  this  article,  such  tax 
shall  be  paid,  on  the  transfer  thereof,  to  the  collector  of  the  county  where 
the  transfer  is  made;  otherwise  the  corporation  permitting  such  transfer 
shall  become  liable  to  pay  such  tax:  Provided,  that  such  corporation  had 
knowledge  before  such  transfer  that  said  stocks  or  loans  were  liable  for 
such  tax.  (Rev.  Stats.  1899,  sec.  311;  Ann.  Stats.,  1906,  p.  451.) 

§  817.    Appraisers  and  Appraisement. 

Sec.  312.  The  probate  judge  of  the  court  having  jurisdiction  of  the 
estate  of  the  decedent,  upon  the  application  of  any  interested  party,  in- 
cluding county  collectors,  or  upon  his  own  motion,  shall,  as  often  and 
whenever  occasion  may  require,  appoint  a  competent  person  as  appraiser, 
to  fix  the  valuation  of  estates  which  shall  be  subject  to  the  payment  of 
any  tax  imposed  by  this  article.  Every  such  appraiser  shall  forthwith 
give  notice  by  mail  to  all  persons  known  to  have  a  claim  or  interest  in 
the  property  to  be  appraised,  including  the  county  collector  of  revenue, 
and  to  such  persons  as  the  probate  judge  may  by  order  direct,  of  the 
time  and  place  when  he  will  appraise  such  estate  or  property.  He  shall 
at  such  time  and  place  appraise  the  same  at  its  clear  market  value,  at 


MISSOURI  STATUTE.  571 

the  time  of  the  death  of  the  decedent,  excluding  therefrom  an  amount 
equivalent  to  the  sum  of  all  of  the  lawful  debts  of  the  decedent,  and  for 
that  purpose  the  said  appraiser  is  authorized  to  issue  subpoenas  and  to 
compel  the  attendance  of  witnesses  before  him  and  to  take  the  evidence 
of  such  witnesses  under  oath  concerning  such  property  and  the  value 
thereof;  and  he  shall  make  report  thereof  and  of  such  value,  in  writing, 
to  the  said  probate  judge,  together  with  the  depositions  of  the  witnesses 
examined,  and  such  other  facts  in  relation  thereto,  and  to  the  said 
matter  as  said  probate  judge  may  order  or  require.  Every  appraiser 
shall  be  paid,  on  the  certificate  of  the  probate  judge,  at  the  rate  of  three 
dollars  per  day  for  every  day  actually  and  necessarily  employed  in  such 
appraisal,  and  his  actual  and  necessary  traveling  expenses,  and  the  fees 
paid  such  witnesses,  which  fees  shall  be  the  same  as  those  now  paid  to 
witnesses  subpoenaed  to  attend  in  courts  of  record,  by  the  county  col- 
lector out  of  any  funds  he  may  have  in  his  hands  on  account  of  any  tax 
imposed  under  the  provisions  of  this  article.  (Kev.  Stats.  1899,  sec.  312; 
Ann.  Stats.  1906,  p.  452.) 

§  818.     Determination  of  Value  of  Estate  and  Assessment  of  Tax. 

Sec.  313.  The  report  of  the  appraiser  shall  be  filed  in  the  office  of  the 
probate  judge,  and  from  such  report  and  other  proof  relating  to  any  such 
estate  before  the  probate  judge,  the  probate  judge  shall  forthwith  assess 
and  fix  the  cash  value  of  all  estates  and  the  amount  of  tax  to  which  the 
same  are  liable;  or,  the  probate  judge  may  so  determine  the  cash  value 
of  all  such  estates  and  the  amount  of  the  tax  to  which  the  same  are 
liable  without  appointing  an  appraiser.  The  value  of  every  limited  estate, 
income,  interest  or  annuity  dependent  upon  any  life  or  lives  in  being 
shall  be  determined  by  the  rule,  method  and  standards  of  mortality  and 
value,  which  are  employed  by  the  superintendent  of  the  insurance  depart- 
ment in  ascertaining  the  value  of  policies  of  life  insurance  and  annuities, 
save  that  the  rate  of  interest  for  computing  the  value  of  such  estates  or 
interest  shall  be  five  per  centum  per  annum;  and  the  superintendent  of  the 
insurance  department  shall,  on  the  application  of  any  probate  judge,  de- 
termine the  value  of  such  limited  estates  or  interests  upon  the  facts  con- 
tained in  such  report,  and  certify  the  same  to  the  probate  judge,  and  his 
certificate  shall  be  conclusive  evidence  that  the  method  of  computations 
adopted  therein  is  correct.  Any  person  dissatisfied  with  the  appraisement 
or  assessment  and  determination  of  tax,  may  appeal  therefrom  to  the  pro- 
bate judge  within  sixty  days  from  the  fixing,  assessing-  and  determination 
of  the  tax  by  the  probate  judge  as  herein  provided,  upon  filing  in  the 
office  of  the  probate  judge  a  written  notice  of  appeal,  which  shall  state 
the  grounds  upon  which  the  appeal  is  taken  and  on  paying  or  giving 
security,  approved  by  the  probate  judge,  to  pay  all  costs  of  the  proceed- 
ing. The  probate  judge  shall  immediately  give  notice,  upon  the  determina- 
tion by  him  as  to  the  value  of  any  estate  which  is  taxable  under  this 
article  and  of  the  tax  to  which  it  is  liable  to  all  persons  known  to  be 
interested  therein.  (Rev.  Stats.  1&99,  sec.  313;  Ann.  Stats.  1906,  p.  452.) 


572  INHERITANCE   TAXATION. 

§  819.     Eeappraiscment. 

Sec.  314.  Within  two  years  after  the  entry  of  an  order  or  decree  of  a 
probate  judge  determining  the  value  of  an  estate  and  assessing  the  tax 
thereon,  the  state  auditor  may,  if  he  believe  that  such  appraisal,  assessment 
or  determination  has  been  fraudulently,  collusively  or  erroneously  made, 
make  application  to  the  circuit  judge  of  the  judicial  circuit  in  which  the 
former  owner  of  such  estate  resided  for  a  reappraisal  thereof.  The  judge 
to  whom  such  application  is  made  may  thereupon  appoint  a  competent 
person  to  reappraise  such  estate.  Such  appraiser  shall  possess  the  powers, 
be  subject  to  the  duties  and  receive  the  compensation  provided  by  sec- 
tions 312  and  314  of  this  article.  Such  compensation  shall  be  payable  by 
the  county  collector  of  revenue  out  of  any  funds  he  may  have  on  account 
of  any  tax  imposed  under  the  provisiong  of  this  article,  upon  the  cer- 
tificate of  the  judge  appointing  him.  The  report  of  such  appraiser  shall 
be  filed  with  the  judge  by  whom  he  was  appointed,  and  thereafter  the 
same  proceedings  shall  be  taken  and  had  by  and  before  such  judge  as  are 
herein  provided  to  be  taken  and  had  by  and  before  the  judge  of  the  probate 
court.  The  determination  and  assessment  of  such  judge  of  the  circuit 
court  shall  supersede  the  determination  of  the  probate  judge,  and  shall  be 
filed  by  such  circuit  judge  in  the  office  of  the  state  auditor.  (Rev.  Stats. 
1899,  sec.  314;  Ann.  Stats.  1906,  p.  453.) 

§  820.    Appraiser  Taking  Illegal  Fees — Penalty. 

Sec.  315.  Any  appraiser  appointed  by  virtue  of  this  article,  who  shall 
take  any  fee  or  reward  from  any  executor,  administrator,  trustee,  legatee, 
next  to  (of)  kin,  or  heir  of  any  decedent,  or  from  any  other  person  liable 
to  pay  said  tax,  or  any  portion  thereof,  shall  be  guilty  of  a  misdemeanor, 
and  upon  conviction  in  any  court  having  jurisdiction  of  misdemeanors  he 
shall  be  fined  not  less  than  two  hundred  and  fifty  dollars  nor  more  than 
five  hundred  dollars,  and  imprisoned  not  exceeding  ninety  days,  and  in  ad- 
dition thereto  the  probate  judge  shall  dismiss  him  from  such  service  and 
he  shall  be  disqualified  from  serving  hereafter  as  an  appraiser.  (Rev. 
Stats.  1899,  sec.  315;  Ann.  Stats.  1906,  p.  453.) 

§  821.    Jurisdiction  of  Probate  Court — Prosecuting  Attorney  to  Eepresent 

State. 

Sec.  316.  The  court  of  probate,  having  either  principal  or  auxiliary 
jurisdiction  of  the  settlement  of  the  estate  of  the  decedent,  shall  have 
jurisdiction  to  hear  and  determine  all  questions  in  relation  to  said  tax  that 
may  arise,  affecting  any  devise,  legacy  or  inheritance  under  this  article, 
subject  to  appeal  as  in  other  cases,  and  the  prosecuting  attorney  of  the 
proper  county  shall  represent  the  interests  of  the  state  in  any  such  pro- 
ceedings; provided,  that  in  any  such  proceedings  carried  on  appeal  to  either 
of  the  courts  of  appeal  or  the  supreme  court  the  attorney  general  shall 
represent  the  interest  of  the  state.  (Rev.  Stats.  1899,  sec.  316;  Ann.  Stats. 
1906,  p.  454.) 

§  822.    Records  to  be  Kept  by  Probate  Judge. 

Sec.  317.  The  state  auditor  shall  furnish  to  each  probate  judge  a  boofc, 
which  shall  be  a  public  record,  and  in  which  he  shall  enter  the  name  of 


MISSOURI  STATUTE.  573 

every  decedent  upon  whose  estate  an  application  to  him  has  been  made 
for  the  issue  of  letters  of  administration  or  letters  testamentary,  the  date 
and  place  of  death  of  such  decedent,  the  estimated  value  of  his  real  and 
personal  property,  the  names,  places,  residences  and  relationship  to  him 
of  his  heirs  at  law,  the  names  and  places  of  residence  of  the  legatees  and 
devisees  in  any  will  of  any  such  decedent,  the  amount  of  each  legacy  and 
the  estimated  value  of  any  real  property  devised  therein,  and  to  whom 
devised.  These  entries  shall  be  made  from  the  data  contained  in  the  papers 
filed  on  any  such  application,  or  in  any  proceeding  relating  to  the  estate 
of  decedent.  The  probate  judge  shall  also  enter  in  such  book  the  amount 
of  the  personal  property  of  any  decedent,  as  shown  by  the  inventory  thereof 
when  made  and  filed  in  his  office,  and  the  returns  made  by  any  appraiser 
appointed  by  him  under  this  article,  and  the  value  of  annuities,  life  estates, 
terms  of  years  and  other  property  of  any  such  decedent  or  given  by  him 
in  his  will  or  otherwise,  as  fixed  by  the  probate  judge,  and  the  tax  assessed 
thereon,  and  the  amount  of  any  receipts  for  payment  of  any  tax  on  the 
estate  of  such  decedent  under  this  article  filed  with  him.  The  state  .auditor 
shall  also  furnish  to  each  probate  judge  forms  for  the  reports  to  be  made 
by  such  probate  judge,  which  shall  correspond  with  the  entries  to  be  made 
in  such  book.  (Rev.  Stats.  1899,  sec.  317;  Ann.  Stats.  1906,  p.  454.) 

§  823.    Reports  to  be  Made  by  Probate  Judge  and.  County  Recorder. 

Sec.  318.  Each  probate  judge  shall,  on  January,  April,  July  and  October 
first  of  each  year,  make  a  report,  in  duplicate,  upon  the  forms  furnished 
by  the  state  auditor,  containing  all  the  data  and  matters  required  to  be 
entered  in  the  book  aforesaid,  one  of  which  shall  be  immediately  delivered 
to  the  county  collector  of  revenue  and  the  other  transmitted  to  the  state 
auditor.  The  recorder  of  each  county  shall  at  the  same  time  make  reports 
in  duplicates,  containing  a  statement  of  any  deed  or  other  conveyance  filed 
or  recorded  in  his  office  of  any  property,  which  appears  to  have  been  made 
or  intended  to  take  effect  in  possession  or  enjoyment  after  the  death  of 
the  grantor  or  vendor,  the  name  and  place  of  residence  of  such  grantor 
or  vendor,  the  name  and  place  of  residence  of  the  grantee  or  vendee,  and  a 
description  of  the  property  transferred,  one  of  which  duplicates  shall  be 
immediately  delivered  to  the  county  collector  of  revenue  and  the  other 
transmitted  to  the  state  auditor.  (Kev.  Stats.  1899,  sec.  318;  Ann.  Stats. 
1906,  p.  454.) 

§  824.     Notice  to  Collector  of  Unpaid  Tax — Proceedings  for  Collection. 

Sec.  319.  If  the  collector  of  revenue  of  any  county  shall  have  reason  to 
believe  that  any  tax  is  due  and  unpaid  under  this  article,  after  the  refusal 
or  neglect  of  the  persons  liable  therefor  to  pay  the  same,  he  shall  notify 
the  prosecuting  attorney  of  the  county,  in  writing,  of  such  failure  or  neglect, 
and  such  prosecuting  attorney,  if  he  have  probable  cause  to  believe  that 
such  tax  is  due  and  unpaid,  shall  apply  to  the  probate  court  for  a  citation, 
citing  the  persons  liable  to  pay  such  tax  to  appear  before  the  court  on  the 
day  specified,  not  more  than  three  months  after  the  date  of  such  citation, 
and  show  cause  why  the  tax  should  not  be  paid.  The  probate  judge,  upon 
such  application,  and  whenever  it  shall  appear  to  him  that  any  such  tax 


574  INHERITANCE  TAXATION. 

accruing  under  this  article  hag  not  been  paid  as  required  by  law,  shall 
issue  such  citation,  and  the  service  of  such  citation,  and  the  hearing  and 
determination  thereon  and  the  enforcement  of  the  determination  of  decree 
made  by  the  probate  judge  and  the  fees  and  costs  in  such  cases  shall  be 
the  same  as  those  now  provided,  or  which  may  hereafter  be  provided,  in 
cases  in  the  probate  courts  of  this  state,  and  the  probate  judge  shall  allow 
ag  costs  in  the  said  case  such  fees  to  said  prosecuting  attorney  as  he  may 
deem  reasonable.  Whenever  the  probate  judge  shall  certify  that  there  was 
probable  cause  for  issuing  a  citation  and  taking  the  proceedings  specified 
in  this  section,  the  state  auditor  shall  credit  the  collector  of  the  county 
with  all  expenses  incurred  for  the  s«rvice  of  citations  and  other  lawful 
disbursements.  In  proceedings  to  which  any  county  collector  is  cited  as 
a  party  under  section  312  of  this  article,  the  state  auditor  is  authorized, 
in  his  discretion,  to  designate  and  retain  counsel  to  represent  such  county 
collector  therein,  and  to  direct  such  county  collector  to  pay  the  expenses 
thereby  incurred  out  of  the  funds  which  may  be  in  his  hands  on  account 
of  thig'tax.  (Rev.  Stats.  1899,  sec.  319;  Ann.  Stats.  1906,  p.  455.) 

§  825.    Receipts  for  Payment  of  Tax. 

Sec.  320.  Any  person  shall,  upon  payment  of  the  sum  of  twenty-five  cents, 
be  entitled  to  a  receipt  from  the  county  collector  of  any  county,  or  at  his 
option,  to  a  copy  of  a  receipt  that  may  have  been  given  by  such  collector 
for  the  payment  of  any  tax  under  this  article,  under  the  official  seal  of 
said  collector,  which  receipt  shall  designate  on  what  real  property,  if  any, 
of  which  any  decedent  may  have  died  seised,  such  tax  shall  have  been 
paid,  by  whom  paid,  and  whether  in  full  of  said  tax,  and  said  receipt 
may  be  recorded  in  the  recorder's  office  in  which  said  property  is  situate, 
in  a  book  to  be  kept  by  said  recorder  for  such  purpose,  which  shall  be 
labeled  "inheritance  tax."  (Eev.  Stats.  1899,  sec.  320;  Ann.  Stats.  1906,  p. 
455.) 

§  826.     Commissions  for  Collecting  Tax. 

Sec.  321.  The  collector  of  each  county  shall  be  allowed  to  retain,  on  all 
taxes  paid  and  accounted  for  by  him  in  each  year,  under  this  article,  in 
addition  to  his  salary  or  fees  now  allowed  by  law,  five  per  centum  on  the 
first  twenty  thousand  dollars  so  paid  and  accounted  for  by  him,  and  three 
per  centum  on  all  additional  sums  so  paid  and  accounted  for  by  him;  pro- 
vided, that  said  collector  shall,  every  three  months,  pay  one-half  of  all 
the  sums  so  retained  by  him,  during  such  period,  to  the  probate  judge  of 
the  said  county  for  the  use  of  said  probate  judge,  except  in  cities  containing 
three  hundred  thousand  inhabitants  and  over  in  which  event  the  collector 
shall  retain  four-fifths  thereof  and  pay  the  probate  judge  one-fifth  of  such 
sums  and  to  defray  the  clerical  expense  arising  in  the  office  of  said  probate 
judge  in  connection  with  proceedings  under  this  article.  (Rev.  Stats.  1899, 
sec.  321;  Amended  Laws  1903,  p.  52;  Ann.  Stats.  1906,  p.  456.) 

§  827.     Repeal  of  Inconsistent  Statutes. 

Sec.  322.  All  statutes,  acts  or  parts  of  acts  inconsistent  with  this  act  are 
hereby  repealed.  (Rev.  Stats.  1899,  sec.  322;  Ann.  Stats.  1906,  p.  456.) 


MONTANA  STATUTE.  675 

CHAPTER  XL. 
MONTANA  STATUTE. 

(Revised  Codes  of  1907,  sees.  7724-7751.) 

§  828.  Transfers  Subject  to  Tax — Rate  of  Taxation — Exemptions. 

§  829.  Appraisement  of  Contingent  or  Determinable  Estates. 

§  830.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  831.  Time  for  Payment  of  Tax — Interest  and  Discount. 

§  832.  Penalty  for  Nonpayment. 

§  833.  Collection  of  Tax  by  Executor. 

§  834.  Sale  of  Property  to  Pay  Tax. 

§  835.  Payment  to  County  Treasurer — Receipts. 

§  836.  Liability  on  Executor's  Bond. 

§  837.  Proceedings  upon  Failure  of  Executor  to  Pay  Tar. 

§  838.  Administrator  De  Bonis  Non. 

§  839.  Refund  in  Case  of  Debts  Proved  After  Distribution. 

§  840.  Refund  in  Case  of  Erroneous  Payment. 

§  841.  Transfer  of  Stocks  or  Loans  by  Foreign  Executor. 

§  842.  Appraisers  and  Appraisement. 

§  843.  Appraiser  Taking  More  Tkan  Regular  Fees — Penalty. 

§  844.  Jurisdiction  of  Courts. 

§  845.  Citation  to  Compel  Payment. 

§  846.  Proceedings  upon  Failure  to  Administer  Estates. 

§  847.  Action  to  Enforce  Tax. 

§  848.  Statement  by  Clerk  of  Delinquent  Taxes. 

§  849.  Costs  of  Collection. 

§  850.  Record  to  be  Kept  by  Clerk. 

§  851.  Duties  of  County  Treasurer. 

§  852.  Receipts  for  Payment  of  Tax — Records. 

§  853.  Purposes  to  Which  Taxes  Shall  be  Devoted. 

§  854.  Repeal  of  Inconsistent  Acts. 

§  855.  Time  When  Statute  Takes  Effect. 

§  828.     Transfers  Subject  to  Tax — Rate  of  Taxation — Exemptions. 

Sec.  7724.  After  the  passage  of  this  act,  all  property  which  shall  pass 
by  will  or  by  the  intestate  laws  of  this  state,  from  any  person  who  may  die, 
seised  or  possessed  of  the  same,  while  a  resident  of  this  state,  or  if  such 
decedent  was  not  a  resident  of  this  state,  at  the  time  of  his  death,  which 
property  or  any  part  thereof,  shall  be  within  this  state,  or  any  interest 
therein  or  income  therefrom,  which  shall  be  transferred  by  deed,  grant,  sale 
or  gift  made  in  contemplation  of  the  death  of  the  grantor  or  bargainer,  or  in- 
tended to  take  effect  in  possession  or  enjoyment  after  such  death  to  any  per- 
son or  persons,  or  to  any  body  politic  corporate,  in  trust  or  otherwise,  or  any 
property,  which  shall  be  in  this  state  or  the  proceeds  of  all  property  outside 
of  this  state,  which  may  come  into  this  state,  and  which  may  be  or  should  be 


576  INHERITANCE   TAXATION. 

distributed  in  this  state  to  any  such  heirs,  devisees  or  legatees,  by  reason 
whereof  any  person  or  corporation  shall  become  beneficially  entitled  in  pos- 
session or  expectancy,  to  any  such  property,  or  to  the  income  thereof,  other 
than  to  or  for  the  use  of  his  or  her  lawful  issue,  brother,  sister,  the  wife  or 
widow  of  the  son,  or  the  husband  of  a  daughter,  or  any  child  or  children 
adopted  as  such  in  conformity  with  the  laws  of  the  state  of  Montana,  and 
any  lineal  descendant  of  such  decedent  born  in  lawful  wedlock,  shall  be 
and  is  subject  to  a  tax  of  five  dollars  on  every  hundred  dollars  of  the 
market  value  of  such  property,  and  at  a  proportionate  rate  for  any  less 
amount,  to  be  paid  to  the  treasurer  of  the  proper  county  hereinafter  defined 
for  the  use  of  said  county  and  state  in  the  proportions  hereafter  stated;  and 
all  administrators,  executors  and  trustees  shall  be  liable  for  any  and  all 
such  taxes  until  the  same  have  been  paid  as  hereinafter  directed.  When 
the  beneficial  interests  to  any  personal  property  or  income  therefrom  shall 
pass  to  or  for  the  use  of  any  father,  mother,  husband,  wife,  child,  brother, 
sister,  wife  or  widow  of  the  son,  or  the  husband  of  a  daughter,  or  any  child 
or  children  adopted  as  such  in  conformity  with  the  laws  of  the  state  of 
Montana,  or  to  any  person  to  whom  the  deceased,  for  not  less  than  ten 
years  prior  to  death,  stood  in  mutually  acknowledged  relation  of  a  parent, 
or  to  any  lineal  descendant  born  in  lawful  wedlock;  in  every  such  case  the 
rate  of  tax  shall  be  one  dollar  on  every  hundred  dollars  of  the  clear  mar- 
ket value  of  such  property,  and  at  and  after  the  same  rate  for  every  less 
amount,  provided,  that  an  estate  which  may  be  valued  at  a  less  sum  than 
seventy-five  hundred  dollars  shall  not  be  subject  to  any  such  tax  or  duty. 
In  all  other  cas«s  the  rate  shall  be  five  dollars  on  each  and  every  hundred 
dollars  of  the  clear  market  value  of  all  property  and  at  the  same  rate  for 
any  amount,  provided,  that  an  estate  which  may  be  valued  at  a  less  sum 
than  five  hundred  dollars  shall  not  be  subject  to  any  such  duties  or  tax, 
provided,  further,  that  said  tax  shall  be  levied  and  collected  upon  the  in- 
crease of  all  property  arising  between  the  date  of  death  and  the  date  of 
the  decree  of  distribution,  and  upon  all  estates  which  have  been  probated 
before,  and  shall  be  distributed  after  the  passage  and  taking  effect  of  thia 
act.  (Rev.  Codes  1907,  sec.  7724.) 

§  829.     Appraisement  of  Contingent  or  Determinable  Estates. 

Sec.  7725.  When  any  grant,  gift,  legacy  or  succession  upon  which  a  tax 
is  imposed  by  section  7724  (1)  of  this  act,  shall  be  an  estate,  income  or 
interest  for  a  term  of  years,  or  for  life,  or  determinable  upon  any  future 
or  contingent  event,  or  shall  be  a  remainder,  or  reversion  or  other  expect- 
ancy, real  or  personal,  the  entire  property  or  fund  by  which  such  estate, 
income  or  interest  is  supported,  or  which  is  a  part,  shall  be  appraised  im- 
mediately after  death  of  the  deceased,  and  the  market  value  thereof  deter- 
mined, in  the  manner  provided  in  section  7738  (15)  of  this  act,  and  the  tax 
prescribed  by  this  act  shall  be  immediately  due  and  payable  to  the  treas- 
urer of  the  proper  county,  and,  together  with  the  interest  thereon,  shall  be 
and  remain  a  lien  on  said  property  until  the  same  is  paid;  provided,  that 
the  person  or  persons,  or  body  politic  or  corporate,  beneficially  interested 
in  the  property  chargeable  with  said  tax,  may  elect  not  to  pay  the  same 


MONTANA  STATUTE.  577 

until  they  shall  come  into  the  actual  possession  or  enjoyment  of  such  prop- 
erty, and  in  that  caae,  such  person  or  persons  or  body  politic  or  corporate 
shall  execute  a  bond  to  the  state  of  Montana  in  a  penalty  of  twice  the 
amount  of  tax,  including  interest  at  ten  per  cent  per  annum,  arising  upon 
the  personal  estate,  with  such  sureties  as  the  clerk  of  the  district  court  of 
the  proper  county  may  approve,  conditioned  for  the  payment  of  said  tax, 
and  interest  thereon,  at  such  time  or  period  as  they  or  their  representatives 
may  come  into  the  actual  possession  or  enjoyment  of  such  property,  which 
bond  shall  be  filed  in  the  office  of  the  clerk  af  the  district  court  of  the 
proper  county;  provided  further,  that  such  person  or  corporation  shall  make 
a  full  and  verified  return  of  such  property  to  said  court,  and  file  the  same 
in  the  office  of  the  clerk  of  the  district  court  for  said  county  and  a  dupli- 
cate thereof  in  the  office  of  the  clerk  and  recorder  of  said  county  within 
one  year  from  the  death  of  the  deceased,  and  within  that  period  enter  into 
such  security  and  bond,  and  renew  the  same  every  three  years.  (Kev.  Code 
1907,  sec.  7725.) 

§  830.     Bequest  to  Executor  in  Lieu  of  Compensation. 

Se«.  7726.  Whenever  a  decedent  appoints  or  names  one  or  more  execu- 
tors or  trustees,  and  makes  a  bequest  or  devise  of  property  to  them  in  lieu 
of  commissions  or  allowances,  which  otherwise  would  be  liable  to  said  tax 
or  appoints  them  hig  residuary  legatees,  and  said  bequests,  devises  or  re- 
siduary legacies  exceed  what  would  be  a  reasonable  compensation  for  their 
services,  such  excess  shall  be  liable  to  said  tax;  and  the  district  court  in 
which  the  probate  proceedings  are  pending  shall  fix  the  compensation. 
(Rev.  Code  1907,  sec.  7726.) 

§  831.    Time  for  Payment  of  Tax — Interest  and  Discount. 

Sec.  7727.  All  taxes  imposed  by  this  act,  unless  otherwise  herein  pro- 
vided for  shall  be  due  and  payable  at  the  death  of  the  decedent,  and  if 
the  same  are  paid  within  ten  months,  no  interest  shall  be  charged  and  col- 
lected thereon,  but  if  not  so  paid,  interest  at  the  rate  of  ten  per  centum 
per  annum  shall  be  charged  and  collected  from  the  time  said  tax  accrues; 
provided,  that  if  said  tax  is  paid  within  six  months  from  the  accruing 
thereof  a  discount  of  three  per  centum  shall  be  allowed  and  deducted  from 
said  tax.  And  in  all  cases  where  the  executors,  administrators  or  trustees 
do  not  pay  such  tax  within  ten  months  from  the  death  of  the  decedent, 
they  shall  be  required  to  give  bond  in  the  form  and  to  the  effect  prescribed 
in  section  7725  (2)  of  this  act  for  the  payment  of  said  tax  with  interest. 
(Rev.  Code  1907,  sec.  7727.) 

§  832.    Penalty  for  Nonpayment. 

Sec.  7728.  The  penalty  of  ten  per  centum  imposed  by  section  7727  (4) 
hereof  for  nonpayment  of  said  tax  thereof,  shall  not  be  charged  in  where, 
by  reason  of  claims  made  upon  the  estate,  necessary  litigation  or  other 
unavoidable  causes  of  delay,  the  estate  of  any  decedent  or  a  part  thereof 
cannot  be  settled  at  the  end  of  eighteen  months  from  the  death  of  the  de- 
cedent; and  in  such  cases  only  seven  per  centum  shall  be  charged  upon  said 
87 


578  INHERITANCE   TAXATION. 

tax   from  the  expiration  of  said  eighteen   months  until  the   cause   of   delay 
is  removed.     (R«v.  Code  1907,  see.  7728.) 

§  833.     Collection  of  Tax  by  Executor. 

Sec.  7729.  Any  administrator,  executor  or  trustee  having  in  charge  or 
trust,  any  legacy,  or  property  for  distribution  subject  to  said  tax,  shall 
deduct  the  tax  therefrom,  or  if  the  legacy  or  property  be  not  money,  he 
shall  collect  the  tax  thereon  upon  the  market  value  thereof,  from  the  legatee 
or  person  entitled  to  such  property,  and  he  shall  not  deliver,  or  be  com- 
pelled to  deliver,  any  specific  legacy  or  property  subject  to  tax  to  any  per- 
son until  he  shall  have  collected  the  tax  thereon,  and  whenever  any  such 
legacy  shall  be  charged  upon  or  payable  out  of  the  real  estate,  the  exec- 
utor, administrator,  or  trustee  shall  collect  said  tax  therefrom,  and  the 
same  shall  remain  a  charge  on  such  real  estate  until  paid;  if,  however, 
such  legacy  be  given  in  money,  to  any  person  for  a  limited  period,  the 
executor,  administrator,  or  trustee  shall  retain  the  tax  on  the  whole  amount. 
But  if  it  be  not  in  money,  he  shall  make  application  to  the  district  court 
of  the  proper  county  to  make  an  apportionment,  if  the  case  require  it,  of 
the  same  to  be  paid  into  his  hands  by  such  legatee  or  legatees  and  for  such 
other  order  relative  thereto  as  the  case  may  require.  (Kev.  Code  1907,  sec. 
7729.) 

§  834.    Sale  of  Property  to  Pay  Tar. 

Sec.  7730.  All  executors,  administrators  and  trustees  shall  have  full 
power  to  sell  so  much  of  the  property  of  the  decedent  as  shall  enable  them 
to  pay  said  tax  in  the  same  manner  as  they  may  be  enabled  by  law  to  do 
for  the  payment  of  debts  of  the  estate,  and  the  amount  of  said  tax  shall  be 
paid  as  hereinafter  directed.  (Rev.  Code  1907,  sec.  7730.) 

§  835.    Payment  to  County  Treasurer — Receipts. 

Sec.  7731.  Every  sum  of  money  retained  by  an  executor,  administrator, 
or  trustee,  or  paid  into  his  hands,  for  any  tax  on  property,  shall  be  paid  by 
him  within  ten  days  thereafter  to  the  treasurer  of  the  county  in  which  the 
probate  proceedings  are  pending,  and  the  said  treasurer  shall  give,  and 
every  executor,  administrator  or  trustee  shall  take  duplicate  receipt  for 
such  payment,  one  of  which  said  receipts  said  executor,  administrator,  or  trus- 
tee shall  immediately  send  to  the  treasurer  of  the  state  whose  duty  it  shall 
be  to  charge  the  county  treasurer  so  receiving  the  tax  with  the  amount  thereof 
due  the  state  and  said  state  treasurer  shall  seal  said  receipt  with  the  seal  of 
his  office,  if.  he  have  one,  and  countersign  the  same,  and  return  it  to  the  exec- 
utor, administrator,  or  trustee,  whereupon  it  shall  be  a  proper  voucher  in  the 
settlement  of  his  accounts;  and  an  executor,  administrator  or  trustee  shall  not 
be  entitled  to  credits  in  his  accounts,  nor  be  discharged  from  liability  for  such 
tax,  nor  shall  said  estate  be  distributed  unless  he  shall  produce  a  receipt  so 
sealed  and  countersigned  by  the  state  treasurer  or  a  copy  thereof  certified  by 
him.  (Rev.  Code  1907,  sec.  7731.) 

§  836.    Liability  on  Executor's  Bond. 

Sec.  773'2.  The  bond  of  an  executor  or  administrator  shall  be  liable  for  all 
moneys  h«  may  receive  under  this  article  of  taxes,  or  for  proceeds  of  sale  of 


MONTANA  STATUTE.  679 

real  estate  received  by  him  thereunder,  or  pursuant  thereto.     (Rev.  Code 
1907,  sec.  7732.) 

§  837.     Proceedings  upon  Failure  of  Executor  to  Pay  Tax. 

Sec.  7733.  If  any  executor  or  administrator  or  trustee  shall  fail  to  per- 
form the  duties  imposed  upon  him  by  this  article  the  district  court  upon 
petition  of  the  county  treasurer,  or  any  person  interested  in  said  estate  may 
revoke  his  administration  and  his  bond  shall  be  liable,  and  the  same  pro- 
ceedings shall  be  had  against  him  as  if  his  administration  had  been  revoked 
for  any  other  cause.  (Eev.  Code  1907,  sec.  7733.) 

§  838.    Administrator  De  Bonis  Non. 

Sec.  7734.  The  power  and  duty  of  an  administrator  de  bonis  non,  or  with 
the  will  annexed,  or  the  public  administrator  shall  be  the  same  under  this 
article  as  those  of  an  executor  or  administrator,  and  he  shall  be  subject 
to  the  same  duties  and  liabilities.  (Kev.  Code  1907,  sec.  7734.) 

§  839.    Refund  in  Case  of  Debts  Proved  After  Distribution. 

Sec.  7735.  Whenever  any  debts  shall  be  proven  against  the  estate  of  the 
deceased,  after  the  payment  of  legacies,  or  distribution  of  property  from 
which  the  said  tax  has  been  deducted  or  upon  which  it  has  been  paid,  and 
a  refund  is  made  by  the  legatee,  devisee,  heir,  or  next  of  kin,  a  propor- 
tion of  the  tax  so  deducted  or  paid  shall  be  repaid  to  him  by  the  executor, 
administrator  or  trustee,  if  the  said  tax  has  not  been  paid  to  the  county 
treasurer  or  state  treasurer,  or  by  them,  in  the  proper  proportionate  shares, 
if  it  has  been  so  paid.  (Rev.  Code  1907,  sec.  7735.) 

§  840.    Eefund  in  Case  of  Erroneous  Payment. 

See.  7736.  When  any  amount  of  said  tax  shall  have  been  paid  errone- 
ously to  the  county  and  state  treasurer,  or  to  either  of  them,  it  shall  be 
lawful  for  them,  on  satisfactory  proof  rendered  to  the  clerk  of  the  district 
court,  in  the  case  of  the  county  treasurer  and  to  the  state  auditor  in  the 
case  of  the  state  treasurer,  of  such  erroneous  payment,  to  refund  and  pay 
to  the  executor,  administrator,  person  or  persons  who  have  paid  any  such 
tax  in  error,  the  county's  and  state's  proportionate  amount  of  such  tax  so 
paid  provided  that  all  such  applications  for  repayment  of  such  tax  shall  be 
made  within  two  years  from  the  date  of  such  payment.  (Rev.  Code  1907, 
sec.  7736.) 

§  841.     Transfer  of  Stocks  or  Loans  by  Foreign  Executor. 

Sec.  7737.  Whenever  any  foreign  executor,  or  administrator  shall  assign 
or  transfer  any  stocks  or  loans  in  this  state,  standing  in  the  name  of  the 
decedent,  or  held  in  trust  for  a  decedent,  which  shall  be  liable  to  the  said 
tax,  such  tax  shall  be  paid  to  the  treasurer  of  the  proper  county  on  the 
transfer  thereof;  otherwise,  the  corporation  permitting  such  transfer  shall 
become  liable  to  pay  such  tax;  provided  that  such  corporation  had  actual 
or  constructive  knowledge  before  such  transfer  that  said  stocks  or  loans 
are  liable  to  said  tax.  (Rev.  Code  1907,  sec.  7737.) 


580  INHERITANCE   TAXATION. 

§  842.    Appraisers  and  Appraisement. 

Sec.  7738.  When  the  value  of  an  inheritance,  devise,  bequest,  or  other 
interest  subject  to  the  payment  of  said  tax  is  uncertain,  the  district  court 
in  which  the  probate  proceedings  are  pending,  or  the  judge  thereof  OB  his 
own  motion,  or  on  the  application  of  any  interested  party  shall  appoint  some 
competent  person  as  appraiser,  as  often  as,  and  whenever  occasion  may  re- 
quire, whose  duty  it  shall  be  forthwith  to  give  such  notice,  by  registered 
mail,  to  all  persons  known  to  have  or  claim  any  interest  in  such  property, 
and  to  such  persons  as  the  court  may  direct,  of  the  time  and  place  at  which 
he  will  appraise  such  property,  and  at  such  time  and  place  to  appraise  the 
same,  and  to  make  the  report  thereof,  in  writing,  to  said  court,  together 
with  such  other  facts  in  relation  thereto,  as  said  court  may  by  order 
require,  to  be  filed  with  the  clerk  of  such  court;  and  from  this  report  the 
said  court,  shall  by  order,  forthwith  assess  and  fix  the  market  value  of  all 
inheritances,  devises,  bequests,  or  other  interests,  and  the  tax  to  which 
the  same  is  liable,  and  shall  immediately  cause  notice  thereof  to  be  given, 
by  registered  mail,  to  all  persons  known  to  be  interested  therein;  and  the 
value  of  every  future  or  contingent,  or  limited  estate,  income,  or  interest, 
shall  for  the  purpose  of  this  act,  be  determined  by  the  rule,  method  and 
standards  of  mortality,  and  of  values  that  are  set  forth  in  the  actuaries' 
combined  experience  tables  of  mortality  for  ascertaining  the  values  of  pol- 
icies of  life  insurance  and  annuities,  and  for  the  determination  of  the  lia- 
bilities of  life  insurance  companies,  save  that  the  rate  of  interest  be 
assessed  in  computing  the  present  value  of  all  future  interest  and  con- 
tingencies shall  be  at  seven  per  cent  per  annum;  and  the  value  of  such 
future,  or  contingent,  or  limited  estate,  income,  or  interest,  shall  be  deter- 
mined in  the  usual  manner  upon  the  facts  contained  in  such  report,  and 
shall  be  certified  to  the  court,  which  said  certificate  shall  be  made  by  some 
one  known  to  the  court  to  be  familiar  with  the  method  of  procedure  by 
companies,  and  his  certificate,  verified  by  oath  shall  be  prima  facie  evidence 
that  the  method  of  computation  adopted  therein  is  correct.  The  said  ap- 
praiser shall  be  paid  by  the  county  treasurer  out  of  any  funds  that  he  may 
have  in  his  hands  on  account  of  said  tax,  and  the  certificate  of  the  court, 
at  the  rate  of  five  dollars  per  day  for  every  day  actually  and  necessarily 
employed  in  said  appraisement,  together  with  the  actual  and  necessary 
traveling  expenses,  a  sworn  statement  of  which  must  be  filed  with  the 
clerk  of  the  district  court  in  which  the  probate  proceedings  are  pending. 
The  person  designated  by  the  court  or  judge  thereof,  to  make  the  compu- 
tations, in  this  section  required,  shall  receive  such  compensation  as  the 
court  or  judge  thereof  shall  deem  reasonable  and  just.  (Rev.  Code  1907, 
sec.  7738.) 

§  843.    Appraiser  Taking  More  Than  Regular  Fees — Penalty. 

Sec.  7739.  Any  appraiser  appointed  by  virtue  of  this  act,  who  sh«.ll  take 
any  fee  or  reward  from  an  executor,  administrator,  trustee,  legatee,  next 
of  kin,  or  heir  of  any  decedent  or  from  any  other  person  liable  to  pay  said 
tax,  or  his  or  their  attorney,  or  any  other  person,  or  any  portion  thereof, 
shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  thereof,  shall  be  fined 


MONTANA  STATUTE.  581 

not  less  than  one  hundred  dollars  nor  more  than  five  hundred  dollars,  or 
imprisonment  in  the  county  jail  ninety  days,  or  both  such  fine  and  impris- 
onment, and  in  addition  thereto,  the  court  shall  dismiss  him  from  such 
service.  The  district  courts  shall  have  concurrent  jurisdiction  with  the 
justices  of  the  peace  courts  for  all  violations  of  the  law  mentioned  in  this 
section.  (Rev.  Code  1907,  sec.  7739.) 

§  844.    Jurisdiction  of  Courts. 

Sec.  7740.  The  district  court  of  the  county  in  which  is  situate  the  real 
property  of  the  decedent,  who  was  not  a  resident  of  this  state,  or  in  the 
county  in  which  the  decedent  was  a  resident  at  the  time  of  his  death,  shall 
have  jurisdiction  to  hear  and  determine  all  questions  in  relation  to  the  tax 
arising  under  the  provisions  of  this  act,  and  the  court  first  acquiring  juris- 
diction hereunder  shall  retain  the  same  to  the  exclusion  of  every  other. 
(Rev.  Code  1907,  »ec.  7740.) 

§  845.     Citation  to  Compel  Payment. 

Sec.  7741.  If  it  shall  appear  to  the  district  court,  or  judge  thereof,  that 
any  tax  accruing  under  this  act  has  not  been  paid  according  to  law,  the 
court  or  judge  shall  issue  a  citation,  citing  the  person  known  to  own  any 
interest  or  part  of  the  property  liable  to  the  tax  to  appear  before  the  court, 
on  a  day  certain,  not  more  than  ten  weeks  from  the  date  of  said  citation, 
and  show  cause  why  said  tax  should  not  be  paid.  The  service  of  such  cita- 
tion and  the  time,  manner,  and  proof  thereof,  and  the  hearing  and.  deter- 
mination thereof,  and  the  enforcement  of  the  determination  or  decree  shall 
conform  to  the  provisions  of  chapter  XII,  of  title  XII  of  the  Code  of  Civil 
Procedure;  and  the  clerk  of  the  court  shall  upon  the  request  of  the  county 
attorney  or  county  treasurer  furnish  without  fee,  one  or  more  transcripts 
of  such  decree,  and  the  same  shall  be.  docketed  and  filed  in  the  office  of 
the  county  clerk  and  recorder  of  any  county  in  the  state,  and  in  the  office 
of  the  clerk  of  the  district  court  of  any  county  in  the  state,  in  the  same 
manner  and  with  the  same  effect  as  provided  by  section  6807  (1197)  of  the 
said  Code  of  Civil  Procedure  for  filing  transcript  of  judgment,  or  of  an 
original  docket.  (Rev.  Code  1907,  sec.  7741.) 

§  846.    Proceedings  upon  Failure  to  Administer  Estates. 

Sec.  7742.  In  all  cases  where  any  estate,  real,  personal  or  mixed,  shall 
be  subject  to  the  direct  or  collateral  inheritance  tax  imposed  by  this  act, 
and  no  administration  is  taken  on  the  estate  of  the  person  who  died  seised 
and  possessed  thereof,  within  ninety  days  after  the  death  of  said  person, 
the  clerk  of  the  district  court  of  the  county  in  which  administration  should 
be  granted,  or  taken  out,  shall  issue  a  citation  for  the  parties  entitled  to 
administration,  to  show  cause  wherefore  they  do  not  administer;  provided, 
however,  that  when  any  real  estate  shall  be  subject  to  said  tax  and  no 
administration  has  been  taken  out  on  the  estate  of  the  person  who  died 
seised  thereof,  the  district  court  of  the  county  where  said  real  estate  shall 
be  situate,  may  on  the  application  of  anyone  interested  in  said  real  estate, 
or  of  the  county  or  state  treasurer  appoint  an  appraiser  to  value  the  same, 


582  INHERITANCE   TAXATION. 

as  provided  in  this  act,  and  the  amount  of  the  tax  which  may  be  found  due 
on  said  property  shall  be  paid  to  the  county  treasurer  and  disposed  of  the 
same  as  other  taxes  provided  for  in  this  act.  (Rev.  Code  1907,  sec.  7742.) 

§  847.    Action  to  Enforce  Tax. 

Sec.  7743.  Whenever  the  treasurer  of  any  county  shall  have  reason  to 
believe  that  any  tax  is  due  and  unpaid  under  this  act,  after  the  refusal  or 
neglect  of  the  persons  interested  in  the  property  liable  to  said  tax,  to  pay 
the  same,  he  shall  notify  the  county  attorney  of  the  proper  county,  in  writ- 
ing, of  such  failure  to  pay  such  tax,  and  the  county  attorney  so  notified, 
if  there  is  a  probable*  cause  to  believe  a  tax  is  due  and  unpaid,  shall  prose- 
cute the  proceedings  in  the  district  court  of  the  proper  county,  as  provided 
in  sections  7741  (18)  and  7742  (19)  of  this  act,  for  the  enforcement  and 
collection  of  such  tax.  (Eev.  Code  1907,  sec.  7743.) 

§  848.     Statement  by  Clerk  of  Delinquent  Taxes. 

Sec.  7744.  The  clerk  of  the  district  court  shall,  every  three  months, 
make  a  statement  in  writing,  to  the  county  treasurer,  of  the  property  from 
which,  or  the  party  from  which,  he  has  reason  to  believe,  or  knows,  a  tax 
under  this  act,  is  due  and  unpaid.  (Rev.  Code  1907,  sec.  7744.) 

§  849.    Costs  of  Collection. 

Sec.  7745.  Whenever  the  district  court  of  any  county  or  the  judge 
thereof  shall  certify  that  there  is  probable  cause  for  issuing  a  citation,  and 
taking  the  proceedings  specified  in  section  7741  (18)  of  this  act,  to  the 
state  auditor,  the  state  auditor  shall  allow  said  claim,  and  shall  draw  his 
warrant  on  the  state  treasurer  in  favor  of  the  county  treasurer  of  the 
county  wherein  said  proceedings  were  taken  or  had  for  all  expenses  in- 
curred for  services  of  said  citation,  and  his  other  lawful  expenses  that  have 
not  otherwise  been  paid;  provided  that  if  it  shall  appear  to  the  district  court 
that  the  party  to  whom  the  citation  is  issued  was  willfully  endeavoring  to 
evade  the  terms  and  provisions  of  this  act,  and  the  payment  of  the  tax  here- 
under,  the  costs  of  said  proceeding  shall  be  taxed  to  him  and  execution  shall 
issue  therefor  in  the  same  manner  as  on  judgments  in  the  district  court.  (Eev. 
Code  1907,  sec.  7745.) 

§  850.    Record,  to  be  Kept  by  Clerk. 

Sec.  7746.  The  clerk  of  the  district  court  of  each  county  shall  keep  a  book 
in  which  he  shall  enter  the  value  of  inheritances,  devises,  bequests,  and  other 
interests  subject  to  the  payment  of  said  tax,  and  the  tax  assessed  thereon, 
and  the  amounts  of  any  receipts  for  the  payments  thereon  filed  with  him, 
which  book  shall  be  kept  by  him  as  public  records.  (Rev.  Code  1907,  sec. 
7746.) 

§  851.    Duties  of  County  Treasurer. 

Sec.  7747.  The  treasurer  of  each  county  shall  collect  all  taxes  that  may 
toe  due  and  payable  under  this  act,  and  he  shall  pay  to  the  state  sixty  per 
cent  thereof,  and  the  state  treasurer  shall  give  him  a  receipt  therefor.  The 


MONTANA  STATUTE.  583 

county  treasurer  shall  make  a  report  under  oath  to  the  state  auditor  be- 
tween the  first  and  fifteenth  days  of  December  of  each  year  of  said  tax  so 
paid,  stating  for  what  estate  paid,  and  in  such  form  and  containing  such 
particulars  as  the  auditor  may  prescribe;  and  for  all  such  taxes  collected 
by  him  and  not  paid  to  the  state  treasurer  by  the  first  day  of  June  and 
January  of  each  year  he  shall  be  liable  upon  his  official  bond.  (Rev.  Code 
1907,  sec.  7747.) 

S  852.    Receipts  for  Payment  of  Tax — Records. 

Sec.  7748.  Any  person  or  body  politic,  or  corporate,  shall,  upon  the  pay- 
ment of  the  sum  of  fifty  cents,  be  entitled  to  a  receipt  from  the  county  treas- 
urer of  any  county,  or  a  copy  of  the  receipt  at  his  option,  that  may  have  been 
given  by  said  treasurer  for  the  payment  of  any  tax  under  this  act,  which 
said  receipt  shall  be  countersigned  by  the  clerk  of  the  district  court  and 
the  seal  of  the  district  court  attached  thereto,  and  shall  designate  on  what 
real  property,  if  any,  of  which  decedent  may  have  died  seised,  said  tax  has 
been  paid,  and  by  whom  paid,  and  whether  or  not  it  is  in  full  of  said  tax, 
and  the  description  of  the  property  upon  which  said  tax  is  paid;  and  the 
said  receipt  may  be  recorded  in  the  office  of  the  county  clerk  and  recorder 
of  the  county  in  which  said  property, is  situate,  in  a  book  to  be  kept  by 
said  clerk  for  such  purpose,  which  shall  be  properly  indexed  and  labeled 
"District  and  Collateral  Tax."  (Eev.  Code  1907,  sec.  7748.) 

§  853.    Purposes  to  Which  Tax  shall  be  Devoted. 

Sec.  7749.  Sixty  per  cent  of  the  taxes  levied  and  collected  under  this 
act,  shall  be  paid  into  the  treasury  of  this  state  for  the  use  of  the  general 
fund,  and  forty  per  cent  thereof  into  the  treasury  of  the  county  for  the 
use  of  the  general  school  fund.  (Rev.  Code  1907,  sec.  7749.) 

§  854.     Repeal  of  Inconsistent  Acts. 

Sec.  7750.  All  acts  and  parts  of  acts  inconsistent  with  the  provisions  of 
this  act,  are  hereby  repealed,  as  far  as  they  affect  the  provisions  hereof. 
(Rev.  Code  1907,  sec.  7750.) 

§  855.     Time  When  Statute  Takes  Effect. 

See.  7751.  This  act  shall  apply  to  all  estates  remaining  undistributed 
at  the  time  thia  law  shall  take  effect,  and  the  tax  shall  be  determined  and 
collected  as  in  other  cases,  and  it  shall  take  effect  and  be  in  force  from 
and  after  its  passage  and  approval  by  the  governor.  (Rev.  Code  1907, 
sec.  7751.) 


584  INHERITANCE  TAXATION. 

CHAPTER  XLI. 

NEBRASKA  STATUTE. 

(Compiled  Statutes  of  1905,  sees.  5176-5196;  Compiled  Statutes  of  1911,  pp. 

1646-1652.) 

§  856.  Transfers  Subject  to  Tax — Bate  of  Taxation — Value  of  Property — 

Exemptions. 

§  857.  Estates  for  Years  or  for  Life  and  Kemainders. 

§  858.  Time  for  Payment — Interest — Bond. 

§  859.  Collection  of  Tax  by  Executor. 

§  860.  Sale  of  Property  to  Pay  Tax. 

§  861.  Payment  by  Executor  to  County  Treasurer — Receipts. 

§  862.  Information  to  County  Treasurer  of  Taxable  Transfers. 

§  863.  Refunding  Tax  When  Debts  Proved   After  Distribution. 

§  864.  Transfer  of  Stocks  or  Loans  by  Foreign  Executor. 

§  865.  Refund  of  Tax  Erroneously  Paid. 

§  866.  Appraisers  and  Appraisement. 

§  867.  Appraiser  Receiving  More  Than  Legal  Fees — Penalty. 

§  868.  Jurisdiction  of  County  Court. 

§  869.  Proceedings  to  Enforce  Tax. 

§  870.  Notice  to  County  Attorney  of  Refusal  to  Pay  Tax. 

§  871.  Statement  of  County  Judge  and  Clerk  of  Taxable  Transfers. 

§  872.  Repealed. 

§  873.  Book  and  Records  to  be  Kept  by  County  Judge. 

§  874.  Disposition  to  be  Made  of  Revenue. 

§  875.  Receipts  for  Payment  of  Tax. 

§  876.  Lien  of  Tax. 

§  856.    Transfers  Subject  to  Tax — Rate  of  Taxation — Value  of  Property — 

Exemptions. 

See.  1.  All  property,  real,  personal  and  mixed  which  shall  pass  by  will 
or  by  the  intestate  laws  of  this  state  from  any  person  who  may  die  seised 
or  possessed  of  the  same  while  a  resident  of  this  state,  or,  if  decedent  was 
not  a  resident  of  this  state  at  the  time  of  his  death,  which  property  or  any 
part  thereof  shall  be  within  this  state,  or  any  interest  therein  or  income 
therefrom,  which  shall  be  transferred  by  deed,  grant,  sale  or  gift  made  in 
contemplation  of  the  death  of  the  grantor,  or  bargainer  or  intended  to  take 
effect,  in  possession  or  enjoyment  after  such  death,  to  any  person  or  persons 
or  to  any  body  politic  or  corporate  in  trust  or  otherwise,  or  by  reason 
thereof  any  person  or  body  corporate  shall  become  beneficiary  [beneficially] 
entitled  in  possession  or  expectation  to  any  property  or  income  thereof, 
shall  be  and  is  subject  to  a  tax,  at  the  rate  hereinafter  specified  to  be  paid 
to  the  treasurer  of  the  proper  county  for  the  use  of  the  state,  and  all  heirs, 
legatees,  and  devisees,  administrators,  executors  and  trustees  shall  be 
liable  for  any  and  all  such  taxes  until  the  same  shall  have  been  paid  as 
hereinafter  directed.  When  the  beneficial  interest  to  any  property  or 


NEBRASKA  STATUTE.  585 

income  therefrom  shall  pass  to  or  for  the  use  of  any  father,  mother,  husband, 
wife,  child,  brother,  sister,  wife  or  widow  of  the  son,  or  husband  of  the 
daughter,  or  any  child  or  children  adopted  as  such  in  conformity  with  the 
laws  of  the  state  of  Nebraska,  or  to  any  person  to  whom  the  deceased  for 
not  less  than  ten  years  prior  to  death  stood  in  the  acknowledged  relation  of 
a  parent,  or  to  any  lineal  descendant  born  in  lawful  wedlock,  in  every  such 
case  the  rate  of  tax  shall  be  one  dollar  on  every  one  hundred  dollars  of  the 
clear  market  value  of  such  property  received  by  each  person,  and  at  the 
same  rate  for  every  less  amount;  provided,  that  any  estate  which  may  be 
valued  at  a  less  sum  than  ten  thousand  dollars  shall  not  be  subject  to  any 
such  duty  or  the  taxes,  and  the  taxes  to  be  levied  in  the  above  case  only 
upon  the  excess  of  ten  thousand  dollars  received  by  each  person;  when  the 
beneficial  interests  to  any  property  or  income  therefrom  shall  pass  to  or 
for  the  use  of  any  uncle,  aunt,  niece,  nephew,  or  other  lineal  descendant  of 
the  same,  in  every  such  case  the  rate  of  such  tax  shall  be  two  dollars  on 
every  one  hundred  dollars  of  the  clear  market  value  of  such  property  re- 
ceived by  each  person  on  the  excess  of  two  thousand  dollars  so  received  by 
each  person;  in  all  other  cases  the  rate  shall  be  as  follows:  On  each  and 
every  hundred  dollars  of  the  clear  market  value  of  all  property  and  at  the 
same  rate  for  any  less  amount,  up  to  five  thousand  dollars,  two  dollars;  on 
all  estates  of  over  five  thousand  dollars  and  not  exceeding  ten  thousand 
dollars,  three  dollars;  on  all  estates  of  over  ten  thousand  dollars  not 
exceeding  twenty  thousand  dollars,  four  dollars;  on  all  estates  of  over 
twenty  thousand  dollars  and  not  exceeding  fifty  thousand  dollars,  five 
dollars;  and  on  all  estates  over  fifty  thousand  dollars,  six  dollars;  provided 
that  an  estate  in  the  above  case  which  may  be  valued  at  a  sum  less  than 
five  hundred  dollars  shall  not  be  subject  to  any  duty  or  tax.  (1901,  c.  54, 
Amended  1905,  H.  E.  90;  1907,  S.  F.  41;  Comp.  Stats.  1911,  p.  1646.) 

§  857.     Estates  for  Years  or  for  Life  and  Remainders. 

Sec.  2.  When  any  person  shall  bequeath  or  devise  any  property  or  inter- 
est therein  or  income  therefrom  to  mother,  father,  husband,  wife,  brother, 
or  sister,  the  widow  of  the  son,  or  the  lineal  descendant,  during  the  life 
or  for  a  term  of  years  with  remainder  to  the  collateral  heir  of  the  decedent, 
or  to  the  stranger  in  blood  or  to  a  body  corporate  at  their  decease  on  the 
expiration  of  such  term,  the  said  life  estate  or  estates  for  a  term  of  years 
shall  be  subject  to  the  tax  prescribed  in  section  1,  and  the  property  so 
passing  shall  be  appraised  immediately  after  the  death  at  what  was  the 
fair  market  value  thereof  at  the  time  of  the  death  of  the  decedent  in  the 
manner  hereinafter  provided,  and  after  deducting  therefrom  the  value  of 
said  life  estate,  or  term  of  years,  the  tax  prescribed  by  this  act  on  the 
remainder  shall  be  immediately  due  and  payable  to  the  treasurer  of  the 
proper  county,  the  interest  thereon  shall  be  and  remain  a  lien  on  said 
property  until  the  same  is  paid;  provided,  that  the  person  or  persons  or  body 
corporate  beneficially  interested  in  the  property  chargeable  with  said  tax 
elect  not  to  pay  the  same  until  they  have  come  into  actual  possession  or 
enjoyment  of  such,  in  that  case  such  person  or  persons  or  body  corporate 
shall  give  a  bond  to  the  state  of  Nebraska  in  a  penal  sum  three  times  the 


586  INHERITANCE  TAXATION. 

amount  of  the  tax  arising  upon  such  estate,  with  such  sureties  as  the  county 
judge  may  approve,  conditioned  for  the  payment  of  said  tax  at  such  time  or 
period  as  they  or  their  representatives  may  come  into  the  actual  possession 
or  enjoyment  of  said  property,  which  bond  shall  be  filed  in  the  office  of  the 
clerk  of  the  proper  county;  provided,  further,  that  such  person  shall  make 
a  full  verified  return  of  said  property  to  said  county  judge,  and  file  the 
same  in  his  office  within  one  year  from  the  death  of  the  decedent,  and 
within  that  period  enter  into  such  securities  and  may  renew  the  same  for 
five  years.  (Comp.  Stats.  1911,  p.  1647.) 

§  858.     Time  for  Payment — Interest — Bond. 

Sec.  3.  All  taxes  imposed  by  this  act,  unless  otherwise  herein  provided 
for,  shall  be  due  and  payable  at  the  death  of  the  decedent,  and  interest  at 
the  rate  of  seven  per  cent  per  annum  shall  be  charged  and  collected  there- 
from for  such  time  as  such  taxes  are  not  paid;  provided,  that  if  said  tax  is 
paid  within  one  year  from  the  accruing  thereof,  interest  shall  not  be  charged 
or  collected  thereon,  and  in  all  cases  where  the  executors  and  administrators 
or  trustees  do  not  pay  such  tax  within  one  year  from  the  death  of  the 
decedent  they  shall  be  required  to  give  a  bond  in  the  form  and  to  the 
effect  prescribed  in  section  two  of  this  act,  for  the  payment  of  said  tax 
together  with  interest.  (Amended  1911,  H.  R.  142;  Comp.  Stats.  1911,  p. 
1648.) 

§  859.     Collection  of  Tax  "by  Executor. 

Sec.  4.  Any  administrator,  executor  or  trustee  having  any  charge  or 
trust  in  legacies  or  property  for  distribution  subject  to  said  tax,  shall  deduct 
the  tax  therefrom,  or  if  the  legacy  or  property  be  not  money,  he  shall 
collect  the  tax  thereon  upon  the  appraised  value  thereof  from  the  legatee 
or  person  entitled  to  such  property,  and  he  shall  not  deliver  or  be  compelled 
to  deliver  any  specific  legacy  or  property  subject  to  tax  to  any  person  until 
he  shall  have  collected  the  tax  thereon,  and  whenever  any  such  legacy 
shall  be  charged  upon  or  payable  out  of  real  estate,  the  heir  or  devisee 
before  paying  the  same  shall  deduct  such  tax  therefrom  and  pay  the  same 
to  the  executor,  administrator  or  trustee,  and  the  same  shall  remain  a  charge 
upon  such  real  estate  until  paid,  and  the  payment  thereof  shall  be  en- 
forced by  the  executor,  administrator  or  trustee  in  the  same  manner  that 
the  said  payment  of  said  legacies  might  be  enforced;  if,  however,  such 
legacy  be  given  in  money  to  any  person  for  a  limited  period,  he  shall  retain 
the  tax  upon  the  whole  amount,  but  if  it  be  not  in  money  he  shall  make 
application  to  the  court  having  jurisdiction  of  his  accounts  to  make  appor- 
tionment if  the  case  requires  it  of  the  sum  to  be  paid  into  his  hands  by 
such  legatees,  and  for  such  further  order  relative  thereto  as  the  case  may 
require.  (Comp.  Stats.  1911,  p.  1648.) 

§  860.    Sale  of  Property  to  Pay  Tax. 

Sec.  5.  All  executors,  administrators  and  trustees  shall  have  full  power 
to  sell  so  much  of  the  property  of  the  decedent  as  will  enable  them  to  pay 
said  tax,  in  the  same  manner  as  they  may  be  enabled  to  do  by  law,  for  the 


NEBRASKA  STATUTE.  587 

payment  of  debts  of  their  testators  and  intestates  and  the  amount  of  said 
tax  shall  be  paid  as  hereinafter  directed.     (Comp.  Stats.  1911,  p.  1648.) 

§  861.    Payment  by  Executor  to  County  Treasurer — Receipts. 

Sec.  6.  Every  sum  of  money  retained  by  any  executor,  administrator 
or  trustee  or  paid  into  his  hands  for  any  tax  on  any  property,  shall  be  paid 
by  him  within  thirty  days  thereafter  to  the  treasurer  of  the  proper  county, 
and  the  said  treasurer  or  treasurers  shall  give,  and  every  executor,  adminis- 
trator or  trustee  shall  take  a  receipt  from  him  of  said  payment.  The  words 
"proper  county"  shall  be  taken  to  mean  the  county  in  which  the  property 
was  situated  and  subject  to  taxation  at  the  time  of  the  death  of  the  owner. 
(Amended  1905,  H.  E.  90;  Comp.  Stats.  1911,  p.  1648.) 

§  862.    Information  to  County  Treasurer   of  Taxable  Transfers. 

Sec.  7.  Whenever  any  of  the  real  estate  of  which  any  decedent  may  die 
seised  shall  pass  to  any  body  corporate  or  to  any  person  or  persons  or  in 
trust  for  them  or  some  of  them,  it  shall  be  the  duty  of  the  executor,  admin- 
istrator or  trustee  of  such  decedent  tp  give  information  thereof,  in  writing 
to  the  treasurer  of  the  county  where  said  real  estate  is  situated  within  six 
months  after  they  undertake  the  execution  of  their  expected  duties,  or  if 
the  facts  be  not  known  within  that  period,  then  within  one  month  after 
the  same  shall  have  come  to  their  knowledge.  (Comp.  Stats.  1911,  p.  1648.) 

§  863.    Refunding  Tax  When  Debts  Proved  After  Distribution. 

Sec.  8.  Whenever  debts  shall  be  proved  against  the  estate  of  the  de- 
ceased after  distribution  of  legacies  from  which  the  inheritance  tax  had 
been  deducted  in  compliance  with  this  act,  and  the  legatee  is  required  to 
refund  any  portion  of  the  legacy,  a  proportion  of  said  tax  shall  be  paid 
to  him  by  the  executor  or  administrator;  if  the  said  tax  has  not  been  paid 
into  the  county  treasury  or  by  the  county  treasurer  if  it  has  been  so  paid. 
(Amended  1905,  H.  B.  90;  Comp.  Stats.  1911,  p.  1648.) 

§  864.    Transfer  of  Stocks  or  Loans  by  Foreign  Executor. 

Sec.  9.  Whenever  any  foreign  executors  or  administrators  shall  assign 
or  transfer  any  stocks  or  loans  in  this  state  standing  in  the  name  of  the 
decedent,  or  in  trust  for  a  decedent  which  shall  be  liable  to  the  said  tax, 
such  tax  shall  be  paid  to  the  treasury  or  treasurer  of  the  proper  county  on 
the  transfer  thereof;  otherwise  the  corporation  making  such  transfer  shall 
become  liable  to  pay  such  taxes,  provided  that  such  corporation  has  knowl- 
edge before  soich  transfer  that  said  stocks  or  loans  are  liable  for  such  taxes. 
(Comp.  Stats.  1911,  p.  1649.) 

§  865.    Refund  of  Tax  Erroneously  Paid. 

Sec.  10.  When  any  amount  of  the  said  tax  shall  have  been  paid  errone- 
ously to  the  county  treasurer  it  shall  be  lawful  for  him,  on  satisfactory 
proof  rendered  to  him  of  said  erroneous  payment,  to  refund  and  pay  to  the 
executor,  administrator  or  trustee,  person  or  persons  who  have  paid  any 
such  tax  in  error,  the  amount  of  such  tax  so  paid  provided  that  all  applica- 


588  INHERITANCE  TAXATION. 

tions  for  the  repayment  of  the  said  tax  shall  be  made  within  two  years 
of  the  date  of  said  payment.  (Amended  1905,  H.  B.  &0;  Comp.  Stats. 
1911,  p.  1649.) 

§  866.    Appraisers  and  Appraisement. 

Sec.  11.  In  order  to  fix  the  value  of  property  of  persons  whose  estate 
shall  be  subject  to  the  payment  of  said  tax,  the  county  judge,  whenever 
an  estate  appears  to  be  subject  to  the  tax  provided  by  this  act  or  upon 
the  application  of  any  interested  party,  shall  appoint  some  competent  person 
as  appraiser  as  often  as,  or  whenever  occasion  may  require,  whose  duty  it  shall 
be  forthwith  to  give  such  notice  by  mail  to  all  persons,  and  to  such  persons 
as  the  county  judge  may  by  order,  direct,  of  the  time  and  place  he  will 
appraise  such  property;  and  at  such  time  and  place  to  appraise  the  property 
at  the  fair  market  value,  of  the  same,  and  for  that  purpose  the  appraiser 
is  authorized  by  leave  of  the  county  judge  to  use  subpoenas  and  to  compel 
the  attendance  of  witnesses  before  him,  and  take  the  evidence  of  such  wit- 
nesses under  oath  concerning  such  property,  and  the  value  thereof,  and  he 
shall  make  a  report  thereof  and  of  such  value  in  writing  to  the  county  judge, 
with  the  depositions  of  the  witnesses  and  such  other  facts  relating  thereto, 
as  the  county  judge  may  by  order  require  to  be  filed  with  the  records  of  the 
county  court,  and  from  this  report  the  county  judge  shall  forthwith  determine 
and  fix  the  then  cash  value  of  all  estates,  annuities,  and  life  estates  for  terms 
of  years  growing  out  of  said  estate,  and  the  tax  to  which  the  same  is  liable, 
and  shall  give  immediate  notice  through  the  mails  to  all  parties  known  to 
be  interested  therein.  Any  person  or  persons  dissatisfied  with  the  appraise- 
ment or  assessment,  may  appeal  therefrom  to  the  county  court,  of  the  proper 
county  within  sixty  days  after  the  making  and  filing  of  such  appraisement  or 
assessment,  conditioned  upon  the  giving  of  security  to  the  court  to  pay  all 
costs,  together  with  all  taxes  that  may  be  fixed  by  the  court.  The  said  ap- 
praisers shall  be  paid  by  the  county  treasurer  out  of  any  funds  he  may 
have  in  his  hands  on  account  of  said  tax,  on  the  certificate  of  the  county 
judge,  a  reasonable  fee  to  be  fixed  by  the  county  judge  together  with  legal 
mileage.  Witnesses  shall  be  allowed  the  sum  of  two  dollars  per  day  for 
every  day's  attendance  before  the  appraisers  or  county  court,  together 
with  legal  mileage.  The  officer  serving  process  under  this  act  shall  receive 
the  same  fees  and  mileage  as  is  now  provided  by  law  for  similar  services, 
and  the  county  judge  for  services  performed  under  this  act  shall  receive  the 
same  fees  as  is  now  provided  by  law  for  similar  services.  All  costs  made  or 
incurred  under  this  act  shall  be  paid  by  the  county  treasurer  out  of  any  funds 
he  may  have  in  his  hands  on  account  of  said  tax,  on  certificate  of  the  county 
judge.  (Amended  March  19,  1907;  S.  P.  21,  sec.  2;  Comp.  Stats.  1911,  p. 
1649.) 

§  867.    Appraiser   Receiving   More   Than   Legal   Fees — Penalty. 

See.  12.  Any  appraiser  appointed  under  the  authority  and  by  virtue  of  this 
act  who  shall  take  any  fee  or  reward  from  any  executor,  administrator,  trustee, 
legatee,  next  of  kin,  or  heir  or  any  decedent,  or  from  any  person  or  corpora- 
tion liable  to  pay  said  tax  or  any  portion  thereof,  shall  be  guilty  of  a  mis- 


NEBRASKA  STATUTE.  589 

demeanor,  and  upon  conviction  in  any  court  of  competent  jurisdiction,  he 
shall  be  fined  not  less  than  one  hundred  dollars  nor  more  than  five  hundred 
dollars,  and  in  addition  thereto  the  county  judge  shall  dismiss  him  from  such 
service.  (Comp.  Stats.  1911,  p.  1650.) 

§  868.    Jurisdiction  of  County   Court. 

See.  13.  The  county  court  in  the  county  in  which  the  real  property  is 
situated  of  a  decedent  who  was  not  a  resident  of  the  state,  or  in  the  county 
of  which  the  deceased  was  a  resident  at  the  time  of  his  death,  shall  have 
jurisdiction  to  hear  and  determine  all  questions  in  relation  to  all  taxes  arising 
under  this  act,  and  the  county  court  first  acquiring  jurisdiction  hereunder 
shall  retain  the  same  to  the  exclusion  of  every  other.  (Comp.  Stats.  1911,  p. 
1650.) 

§  869.    Proceedings  to  Enforce  Tax. 

Sec.  14.  If  it  shall  appear  to  the  county  court  that  any  tax  accruing 
under  this  act  has  not  been  paid  according  to  law,  it  shall  issue  a  summons 
commanding  the  persons  or  corporation  liable  to  pay  such  tax  or  interested 
in  such  property  to  appear  before  the  court  on  a  certain  day  not  more  than 
three  months  after  the  date  of  such  summons,  to  show  cause  why  such  tax 
should  not  be  paid.  The  process,  practice  and  pleadings  and  the  hearing  and 
determination  thereof,  and  the  judgment  in  said  court  in  such  cases  shall 
be  the  same  as  those  now  provided  or  those  which  may  be  hereafter  provided 
in  probate  cases  in  the  county  courts  of  this  state  and  the  fees  and  costs 
in  such  cases  shall  be  the  same  as  in  probate  eases  in  the  county  courts  of  this 
state.  (Comp.  Stats.  1911,  p.  1650.) 

§  870.    Notice  to   County  Attorney  of  Refusal  to  Pay  Tar. 

Sec.  15.  Whenever  the  treasurer  of  any  county  shall  have  reason  to  believe 
that  any  tax  is  due  and  unpaid  under  this  act,  after  the  refusal  or  neglect 
of  the  person  interested  in  the  property  liable  to  pay  said  tax  to  pay  the 
same,  he  shall  notify  the  county  attorney  of  the  proper  county  in  writing  of 
such  refusal  -to  pay  said  tax,  and  the  county  attorney  so  notified,  if  he  has 
cause  to  believe  a  tax  is  due  and  unpaid,  shall  prosecute  the  proceeding  in 
the  county  court  in  the  proper  county,  as  provided  in  section  fourteen  of 
this  act,  for  the  enforcement  and  collection  of  this  tax.  (Comp.  Stats.  1911, 
p.  1650.) 

§  871.     Statement  of  County  Judge  and  Clerk  of  Taxable  Transfers. 

Sec.  16.  The  county  judge  and  county  clerk  of  each  county  shall,  every 
three  months,  make  a  statement  in  writing  to  the  county  treasurer  of  the 
county,  of  the  party  from  which  or  the  party  from  whom  they  have  reason 
to  believe  a  tax  under  this  act  is  due  and  unpaid.  (Comp.  Stats.  1911,  p. 
1651.) 

§  872. 

Sec.  17.    Bepealed.     (Laws  1905,  H.  E.  90;  Comp.  Stats.  1911,  p.  1651.) 


590  INHERITANCE   TAXATION. 

§  873.     Book  and  Records  to  be  Kept  by  County  Judge. 

Sec.  18.  The  secretary  of  state  shall  furnish  to  each  county  judge  a  book 
in  which  he  shall  enter  the  returns  made  by  appraisers,  the  cash  value  of 
annuities,  life  estates  and  terms  of  years  and  other  property  fixed  by  him, 
and  the  tax  assessed  thereon  and  the  amounts  of  any  receipts  for  payments 
thereof  filed  with  him,  which  book  shall  be  kept  in  the  office  of  the  county 
judge  as  public  records.  (Comp.  Stats.  1911,  p.  1651.) 

§  874.    Disposition  to  be  Made  of  Revenue. 

Sec.  19.  The  county  treasurer  of  each  county  shall  keep  all  money  col- 
lected under  the  provisions  of  this  act  in  a  separate  and  special  fund  to  be 
expended  under  the  direction  of  the  county  board  of  each  county,  for  the 
sole  purpose  of  the  permanent  improvement  of  the  county  roads;  such  roads 
shall  not  be  built  within  the  corporate  limits  of  any  city  or  village,  but  shall 
begin  at  the  limit  of  any  city  or  village  and  extending  therefrom,  in  the 
direction  most  traveled  by  the  public;  to  be  determined  upon  by  the  said 
county  board.  Provided  that  such  improvements  may  be  made  from  the  limit 
of  any  city  of  the  metropolitan  or  first  class  and  through  a  city  of  the  second 
class  or  village  where  the  road  so  determined  upon  to  be  improved  is  a  main 
road  between  the  country  and  Euch  city  of  the  metropolitan  or  first  class.  All 
contracts  for  such  permanent  improvements  shall  be  let  by  the  said  board, 
by  competitive  bids'  after  the  plans  and  specifications  therefor  drawn  by 
the  county  surveyor  or  engineer  have  been  filed  with  the  county  clerk  of  each 
respective  county.  All  bids  for  the  construction  of  such  roads  shall  be 
deposited  with  the  county  judge  of  the  respective  counties  and  opened  by  him 
in  the  presence  of  the  county  commissioner  and  county  clerk,  and  then  filed 
with  the  county  clerk.  All  such  permanent  road  beds  shall  not  be  less  than 
twelve  feet  nor  more  than  sixteen  feet  in  width,  and  shall  be  constructed 
of  the  most  durable  and  approved  material,  and  the  remaining  part  of  said 
road  shall  be  constructed  at  one  side  of  the  said  permanent  part,  and  be  used 
as  dirt  road;  provided  that  it  shall  Be  lawful  for  the  county  commissioners 
of  any  county  having  a  population  of  not  more  than  thirty  thousand  to  use 
said  fund  in  the  manner  herein  provided  for  the  improvement  of  any  grade, 
bridge,  cut,  fill,  or  dirt  road  leading  into  any  city  or  village  within  said 
county.  Provided,  that  all  money  heretofore  paid  by  the  various  county  treas- 
urers to  the  state  treasurer,  under  the  provisions  of  this  act  shall  be  upon 
proper  vouchers  signed  by  the  county  judge  and  county  treasurer,  paid  back 
to  the  said  county  from  which  said  tax  was  received,  and  said  money  when 
so  refunded  by  the  state  treasurer  shall  be  placed  in  the  special  fund  hereto- 
fore mentioned  in  each  county  and  .shall  be  expended  in  like  manner  and 
for  like  purposes  as  hereinabove  specified.  (Amended  1905,  H.  E.  90;  March 
18,  1907;  S.  F.  21,  sec.  1;  Comp.  Stats.  1911,  p.  1651.) 

§  875.    Receipts  for  Payment  of  Tax. 

Sec.  20.  Any  person  or  body  corporate  shall,  upon  the  payment  of  fifty 
cents,  be  entitled  to  a  receipt  from  the  county  treasurer  of  any  county  or  the 
copy  of  the  receipt  at  his  option,  that  may  have  been  given  by  the  treas- 
urer for  the  payment  of  any  tax  under  this  act,  which  receipt  shall  designate 


NEBRASKA  STATUTE.  591 

on  what  real  property,  if  any,  of  which  deceased  may  have  died  seised,  said 
tax  has  been  paid  and  by  whom  paid,  and  whether  or  not  it  is  in  full  of  said 
tax,  and  said  receipt  may  be  recorded  in  the  clerk's  office  of  said  county  in 
which  the  property  may  be  situated,  in  the  book  to  be  kept  by  said  clerk  for 
such  purpose.  (Comp.  Stats.  1911,  p.  1651.) 

§  876.    Lien  of  Tax. 

Sec.  21.  The  lien  of  the  inheritance  tax  shall  continue  until  the  said  tax 
is  settled  and  satisfied;  provided,  that  said  lien  shall  be  limited  to  the  prop- 
erty chargeable  therewith;  and  provided  further,  that  all  inheritance  taxes 
shall  be  sued  for  within  five  years  after  they  are  due  and  legally  demandable, 
otherwise  they  shall  be  presumed  to  be  paid  and  cease  to  be  a  lien  as  against 
any  purchaser  of  real  estate.  (Comp.  Stats.  1911,  p.  1652.) 


592  INHERITANCE  TAXATION. 


CHAPTER  XLII. 
NEW  HAMPSHIRE  STATUTE. 

(Laws  of  1905,  pp.  4SS-4S6 ;  Laws  of  1907,  pp.  66-70;  Laws  of  1911,  pp. 

44-52.) 

§  877.  Transfers  Subject  to  Tax. 

§  878.  Estates  for  Years  or  for  Life  and  Kemainders. 

§  879.  Bequest  to  Executor  in  Lieu  of  Commissions. 

§  880.  Time  for  Payment  of  Bond— Interest  and  Lien. 

§  881.  Collection  of  Tax  by  Executor. 

§  882.  Legacy  Charged  upon  Eeal  Estate. 

§  883.  Transfer  of  Less  Than  Fee. 

§  884.  Sale  of  Land  to  Pay  Tax. 

§  885.  Statements    and    Accounts    of    Administrator — Inventory    and    Ap- 
praisal. 

§  886.  Copies  of  Papers  to  be  Sent  State  Treasurer. 

§  887.  Notice  to  State  Treasurer  of  Transfer  of  Estate  of  Decedent. 

§  888.  Determination  of  Amount  of  Tax. 

§  889.  Reappraisement — Assessment  of  Tax. 

«.  §  890.  Appeal — Enforcement  of  Lien. 

§  891.  Application  by  State  Treasurer  for  Administration. 

§  892.  Account  of  Executor  not  Allowed  Until  Taxes  Paid. 

§  893.  Appearance  Before  State  Treasurer  in  the  Matter  of  Taxes. 

§  894.  Transfer  of  Stock  or  Obligations  by  Foreign  Executor. 

§  895.  Transfer  of  Securities  or  Assets  Belonging  to  Estate  of  Nonresident. 

§  896.  State  Treasurer  a  Party  to  All  Proceedings. 

§  897.  Books  and  Blanks  to  be  Furnished  Probate  Judge. 

i  898.  Time  When  Statute  Takes  Effect. 

§  877.     Transfers  Subject  to  Tax, 

Sec.  1.  All  property  within  the  jurisdiction  of  the  state,  real  or  per- 
sonal, and  any  interest  therein,  whether  belonging  to  inhabitants  of  the 
state  or  not,  which  shall  pass  by  will,  or  by  the  laws  regulating  intestate 
succession,  or  by  deed,  grant,  bargain,  sale  or  gift,  made  or  intended  to 
take  effect  in  possession  or  enjoyment  after  the  death  of  the  grantor  or 
donor,  to  any  person,  absolutely  or  in  trust,  except  to  or  for  the  use  of  the 
father,  mother,  husband,  wife,  brother,  sister,  lineal  descendant,  adopted 
child,  the  lineal  descendant  of  any  adopted  child,  the  wife  or  widow  of  a 
son,  or  the  husband  of  a  daughter,  of  a  decedent,  or  to  or  for  the  use  of 
educational,  religious,  cemetery,  or  other  institutions,  societies  or  associa- 
tions of  public  charity  in  this  state,  or  for  or  upon  trust  for  any  chari- 
table purpose  in  the  state,  or  for  the  care  of  cemetery  lots,  or  to  a  city  or 
town  in  this  state  for  public  purposes,  shall  be  subject  to  a  tax  of  five  per 
cent  of  its  value,  for  the  use  of  the  state;  and  administrators,  executors, 
and  trustees,  and  any  such  grantees  under  a  conveyance  made  during  the 


NEW  HAMPSHIRE  STATUTE.  593 

grantor's  life,  shall  be  liable  for  such  taxes,  with  interest,  until  the  same 
have  been  paid.  An  institution  or  society  shall  be  deemed  to  be  in  this 
state,  within  the  meaning  of  this  act,  when  its  sole  object  and  purpose  is 
to  carry  on  charitable,  religious  or  educational  work  within  the  state,  but 
not  otherwise.  When  the  personal  estate  so  passing  from  any  person  not 
an  inhabitant  of  this  state  shall  consist  in  whole  or  in  part  of  shares  in 
any  railroad  or  street  railway  company  or  telegraph  or  telephone  company 
incorporated  under  the  laws  of  this  state  and  also  of  some  other  state  or 
country,  so  much  only  of  each  share  as  is  proportional  to  the  part  of  such 
company's  right  of  way  lying  within  this  state  shall  be  considered  as  prop- 
erty of  such  person  within  the  jurisdiction  of  the  state  for  the  purposes  of 
this  act.  (Laws  1911,  p.  44.) 

§  878.    Estates  for  Years  or  for  Life  and  Remainders. 

Sec.  2.  When  any  interest  in  property  less  than  an  estate  in  fee  shall 
pass  by  will,  or  otherwise,  as  set  forth  in  section  1,  to  one  or  more  bene- 
ficiaries, with  remainder  to  others,  the  several  interests  of  such  benefici- 
aries, except  such  as  may  be  entitled  to  exemption  under  the  provisions 
of  section  1,  shall  be  subject  to  said  tax.  The  value  of  an  annuity  or  life 
estate  shall  be  determined  by  the  actuaries'  combined  experience  tables  at 
four  per  cent  compound  interest,  and  the  value  of  any  intermediate  estate 
less  than  a  fee  shall  be  so  determined  whenever  possible.  The  value  of  a 
remainder  after  such  estate  shall  be  determined  by  subtracting  the  value 
of  the  intermediate  estate  from  the  total  value  of  the  bequest  or  devise. 
Whenever  such  intermediate  estate  or  remainder  is  conditioned  upon  the 
happening  of  a  contingency,  or  dependent  upon  the  exercise  of  a  discretion, 
so  that  the  value  of  either  cannot  be  determined  by  the  tables  as  herein- 
before provided,  the  value  of  the  property  which  is  the  subject  of  the  be- 
quest shall  be  determined  as  provided  in  section  13,  and  such  value  having 
thus  been  ascertained  the  state  treasurer  shall,  upon  such  evidence  as  may 
be  furnished  by  the  will  and  the  executor's  statement  or  by  the  beneficiaries 
or  otherwise,  determine  the  value  of  the  interests  of  the  several  benefici- 
aries, and  the  values  thus  determined  shall  be  deemed  to  be  the  values  of 
such  several  interests  for  the  purpose  of  the  assessment  of  the  tax  except  in 
so  far  as  they  shall  be  changed  by  the  court  upon  appeal.  The  executor  or 
any  beneficiary  aggrieved  by  such  determination  of  the  value  of  any  such 
interest  by  the  state  treasurer  may  at  any  time  within  three  months  after 
notice  thereof  appeal  therefrom  to  the  probate  court  having  jurisdiction 
of  the  estate  of  the  decedent,  which  court  shall  determine  such  value  sub- 
ject to  appeal  as  in  other  cases.  Whenever  the  identity  of  the  beneficiary 
who  is  to  take  such  a  remainder  is  conditioned  upon  the  happening  of  a 
contingency,  or  dependent  upon  the  exercise  of  a  discretion  the  state  treas- 
urer shall  assess  and  collect  the  tax  upon  such  remainder  as  upon  a  taxable 
legacy,  and  the  executor  shall  be  liable  for  such  tax  as  in  other  cases. 
Provided  however  that  if  at  the  termination  of  the  intermediate  estate 
such  remainder  or  any  portion  thereof  shall  pass  to  a  person  or  corporation 
which  at  the  time  of  the  death  of  the  decedent  was  exempt  from  such  tax, 
such  person  or  corporation  may  at  any  time  within  one  year  after  the  tenni- 
88 


594  INHERITANCE   TAXATION. 

nation  of  the  intermediate  estate,  but  not  afterward,  apply  to  the  probate 
court  for  an  abatement  of  the  tax  on  such  remainder  as  provided  in  section 
12,  and  the  state  treasurer  shall  repay  the  amount  adjudged  to  have  been 
illegally  exacted  as  provided  in  said  section  12  with  interest  thereon  at 
three  per  cent  per  annum  from  the  date  of  the  payment  of  the  tax.  Pro- 
vided however  that  the  power  of  the  state  treasurer,  with  the  approval  of 
the  attorney  general,  to  adjust  the  tax  by  compromise  in  certain  cas'es,  as. 
set  forth  in  chapter  69  of  the  laws  of  1907,  shall  remain  in  force.  (Laws- 
1911,  p.  45.) 

§  879.    Bequest  to  Executor  in  Lieu  of  Commissions. 

Sec.  3.  If  a  testator  gives,  bequeaths  or  devises  to  his  executors  or  trus- 
tees any  property  otherwise  liable  to  said  tax,  in  lieu  of  their  compensa- 
tion, the  value  thereof  in  excess  of  reasonable  compensation,  as  determined 
by  the  probate  court  upon  the  application  of  any  interested  party  or  the 
state  treasurer,  shall  nevertheless  be  subject  to  the  provisions  of  this  chap- 
ter. (Laws  1911,  p.  46.) 

§  880.     Time  for  Payment  of  Bond — Interest  and  Lien. 

Sec.  4.  All  taxes  imposed  by  the  provisions  of  this  chapter,  including: 
taxes  on  intermediate  estates  and  remainders  as  set  forth  in  section  2,  shall 
be  due  and  payable  to  the  state  treasurer  by  the  executors,  administrators 
or  trustees,  at  the  expiration  of  two  years  after  the  date  of  their  giving 
bonds.  If  the  probate  court  has  ordered  the  executor  or  administrator  to 
retain  funds  to  satisfy  a  claim  of  a  creditor,  the  payment  of  the  tax  may 
be  suspended  by  the  court  to  await  the  disposition  of  such  claim.  If  the 
taxes  are  not  paid  when  due,  interest  at  the  rate  of  ten  per  cent  per  annum 
shall  be  charged  and  collected  from  the  time  the  same  became  payable; 
and  said  taxes  and  interest  shall  be  and  remain  a  lien  on  the  property 
subject  to  the  taxes  until  the  same  are  paid.  (Laws  1911,  p.  46.) 

§  881.    Collection  of  Tax  by  Executor. 

See.  5.  An  executor,  administrator  or  trustee  holding  property  subject 
to  said  tax  shall  deduct  the  tax  therefrom  or  collect  it  from  the  legatee 
or  person  entitled  to  said  property,  and  he  shall  not  deliver  property  or  a 
specific  legacy  subject  to  said  tax  until  he  has  collected  the  tax  thereon. 
When  a  specific  bequest  of  personal  property  other  than  money  is  subject 
to  a  tax  under  the  provisions  of  this  act  and  the  legatee  neglects  or  refuses- 
to  pay  the  tax  upon  demand,  the  executor  or  trustee  may  upon  such  notice 
as  the  probate  court  may  direct  be  authorized  to  sell  such  property,  or  if 
the  same  can  be  divided,  such  portion  thereof  as  may  be  necessary  and 
shall  deduct  the  tax  from  the  proceeds  of  such  sale,  and  shall  account  to 
the  legatee  for  the  balance  if  any  of  such  proceeds  in  lieu  of  the  property. 
An  executor  or  administrator  shall  collect  taxes  due  upon  land  which  i» 
subject  to  tax  under  the  provisions  hereof  from  the  heirs  or  devisees  en- 
titled thereto,  and  he  may  be  authorized  to  sell  said  land  according  to  the 
provisions  of  section  8  if  they  refuse  or  neglect  to  pay  said  tax.  (Laws 
1911,  p.  46.) 


NEW  HAMPSHIRE  STATUTE.  595 

§  882.    Legacy  Charged  upon  Real  Estate. 

Sec.  6.  If  a  legacy  subject  to  said  tax  is  charged  upon  or  payable  out  of 
real  estate,  the  heir  or  devisee,  before  paying  it,  shall  deduct  said  tax  there- 
from and  pay  it  to  the  executor,  administrator  or  trustee,  and  the  tax  shall 
remain  a  charge  upon  said  real  estate  until  it  is  paid.  Payment  thereof 
may  be  enforced  by  the  executor,  administrator  or  trustee  in  the  same  man- 
ner as  the  payment  of  the  legacy  itself  could  be  enforced.  (Laws  1911, 
p.  46.) 

§  883.     Transfer  of  Less  Than  Fee. 

Sec.  7.  When  any  interest  in  property  less  than  an  estate  in  fee  is  de- 
vised or  bequeathed  to  one  or  more  beneficiaries  with  remainder  to  others, 
and  the  interest  of  one  or  more  of  the  beneficiaries  is  subject  to  said  tax, 
the  executor  shall  deduct  the  tax  upon  such  taxable  interests  from  the 
whole  property  thus  devised  or  bequeathed  and  whenever  property  other 
than  money  is  so  devised  or  bequeathed  he  may,  unless  the  taxes  upon  all 
the  taxable  interests  are  paid  when  due  by  the  beneficiaries,  be  authorized 
to  sell  such  property  or  such  portion  thereof  as  may  be  necessary,  as  pro- 
vided in  sections  5  and  8  and  having  deducted  the  unpaid  taxes  on  such 
taxable  interests  from  the  proceeds  of  such  sale,  he  shall  account  for  the 
balance  in  lieu  of  the  property  sold  as  in  other  cases.  (Laws  1911,  p.  46.) 

§  884.     Sale  of  Land  to  Pay  Tax. 

Sec.  8.  The  probate  court  may  authorize  executors,  administrators  and 
trustees  to  sell  the  real  estate  of  a  decedent  for  the  payment  of  said  tax  in, 
the  same  manner  as  it  may  authorize  them  to  sell  real  estate  for  the  pay- 
ment of  debts.  (Laws  1911,  p.  47.) 

§  885.     Statements   and   Accounts    of   Administrator — Inventory   and   Ap- 
praisal. 

Sec.  9.  Every  administrator  shall  prepare  a  statement  in  duplicate, 
showing  as  far  as  can  be  ascertained  the  names  of  all  the  heirs  at  law  and 
their  relationship  to  the  decedent,  and  every  executor  shall  prepare  a  like 
statement  showing  the  relationship  to  the  decedent  of  all  legatees  named 
in  the  will,  and  the  age  at  the  time  of  the  death  of  the  decedent  of  all  lega- 
tees to  whom  property  is  bequeathed  or  devised  for  life  or  for  a  term  of 
years,  and  the  names  of  those,  if  any,  who  have  died  before  the  decedent, 
and  shall  file  same  with  the  register  of  probate  at  the  time  of  his  appoint- 
ment. Letters  of  administration  shall  not  be  issued  by  the  probate  court 
to  any  executor  or  administrator  until  he  has  filed  such  statement  in  dupli- 
cate, and  has  given  bond  with  sufficient  sureties  to  pay  all  taxes  for  which 
he  may  be  or  become  liable  under  the  provisions  of  this  act,  and  to  comply 
with  all  of  its  provisions.  Every  executor  and  administrator  when  he  files 
his  account  in  the  probate  court  shall  file  a  duplicate  thereof  with  the  state 
treasurer.  An  inventory  and  appraisal  under  oath  of  the  whole  of  every 
estate,  any  part  of  which  may  be  subject  to  a  tax  under  the  provisions  of 
this  act,  in  the  form  prescribed  by  the  statute,  shall  be  filed  in  probate 
court  by  the  executor,  administrator  or  trustee  within  three  months  after 


596  INHERITANCE  TAXATION. 

his  appointment.  If  lie  neglects  or  refuses  to  comply  with  any  of  the  re- 
quirements of  this  section  he  shall  be  liable  to  a  penalty  of  not  more  than 
one  thousand  dollars,  which  shall  be  recovered  by  the  state  treasurer  for 
the  use  of  the  state,  and  after  hearing  and  such  notice  as  the  court  of  pro- 
bate may  require,  the  said  court  of  probate  may  remove  said  executor  or 
administrator,  and  appoint  another  person  administrator  with  the  will  an- 
nexed, or  administrator,  as  the  case  may  be;  and  the  register  of  probate 
shall  notify  the  state  treasurer  within  thirty  days  after  the  expiration  of 
said  three  months  of  the  failure  of  any  executor,  administrator  or  trustee 
to  file  such  inventory  and  appraisal  in  his  office.  (Lawa  1911,  p.  47.) 

§  886.    Copies  of  Papers  to  be  Sent  State  Treasurer. 

Sec.  10.  The  register  of  probate  shall  within  thirty  days  after  it  is  filed, 
send  to  the  state  treasurer,  by  mail,  one  copy  of  every  statement  filed  with 
him  by  executors  and  administrators  as  provided  in  section  9,  a  copy  of 
every  will  containing  legacies  which  are  subject  to  a  tax  under  the  pro- 
visions of  this  chapter,  and  a  copy  of  the  inventory  and  appraisal  of  every 
estate,  any  part  of  which  may  be  subject  to  such  a  tax,  unless  notified  by 
the  state  treasurer  that  such  copies  will  not  be  required.  The  fees  for  such 
copies  shall  be  paid  by  the  state  treasurer.  The  register  shall  also  furnish 
such  copies  of  papers  and  such  information  as  to  records  and  files  in  his 
office,  in  such  form,  as  the  state  treasurer  may  require.  A  refusal  or  neglect 
by  the  register  so  to  send  such  copies,  or  to  furnish  such  information,  shall 
be  a  breach  of  his  official  bond.  The  fees  of  registers  of  probate  for  copies 
furnished  under  the  provisions  of  this  section  shall,  be  one  dollar  for  each 
will  or  inventory  not  exceeding  four  full  typewritten  pages,  eight  by  ten 
and  one-half  inches,  and  twenty-five  cents  for  each  page  in  excess  of  four. 
(Laws  1911,  p.  47.) 

§  887.    Notice  to  State  Treasurer  of  Transfer  of  Estate  of  Decedent. 

Sec.  11.  If  real  estate  of  a  decedent  so  passes  to  another  person  as  to 
become  subject  to  said  tax,  his  executor,  administrator  or  trustee  shall 
inform  the  state  treasurer  thereof  within  six  months  after  his  appointment, 
or  if  the  fact  is  not  known  to  him  within  that  time,  then  within  one  month 
after  the  fact  becomes  known  to  him.  (Laws  1911,  p.  48.) 

§  888.     Determination  of  Amount  of  Tax. 

Sec.  12.  The  state  treasurer  shall  determine  the  amount  of  all  taxes  due 
and  payable  under  the  provisions  of  this  act,  and  shall  certify  the  amount 
eo  due  and  payable  to  the  executor  or  administrator  if  any,  otherwise  to 
the  person  or  persons  by  whom  the  tax  is  payable;  but  in  the  determina- 
tion of  the  amount  of  any  tax  said  state  treasurer  shall  not  be  required  to 
consider  any  payments  on  account  of  debts  or  expenses  of  administration 
which  have  not  been  allowed  by  the  probate  court  having  jurisdiction  of 
said  estate.  The  amount  due  upon  the  claim  of  any  creditor  against  the 
estate  of  a  deceased  person  arising  under  a  contract  made  after  the  passage 
of  this  act,  if  payable  by  the"  terms  of  such  contract  at  or  after  the  death 
of  the  deceased  shall  be  subject  to  the  same  tax  imposed  by  this  chapter 


NEW  HAMPSHIRE  STATUTE.  697 

upon  a  legacy  of  like  amount.  The  value  of  legacies  or  distributive  shares 
in  the  estates  of  deceased  persons  for  the  purpose  of  the  legacy  or  succes- 
sion tax  shall  not  be  diminished  by  reason  of  any  claim  against  the  estate 
based  upon  such  a  contract  in  favor  of  the  persons  entitled  to  such  leg- 
acies or  distributive  shares,  except  in  so  far  as  it  may  be  shown  affirm- 
atively by  competent  evidence  that  such  claim  was  legally  due  and  pay- 
able in  the  lifetime  of  the  decedent.  Payment  of  the  amount  so  certified 
ehall  be  a  discharge  of  the  tax.  An  executor,  administrator,  trustee  or 
grantee  who  is  aggrieved  by  any  such  determination  of  the  state  treasurer 
and  who  pays  the  tax  assessed  without  appeal,  may,  within  one  year  after 
the  payment  of  such  tax  to  the  treasurer,  but  not  afterward,  apply  to  the 
probate  court  having  jurisdiction  of  the  estate  of  the  decedent  for  the 
abatement  of  said  tax  or  any  part  thereof,  and  if  the  court  adjudges  that 
said  tax  or  any  part  thereof  was  wrongfully  exacted  it  shall  order  an 
abatement  of  such  portion  of  said  tax  as  was  assessed  without  authority 
of  law  which  said  order  or  decree  shall  be  subject  to  appeal  as  in  other 
cases.  Upon  a  final  decision  ordering  an  abatement  of  any  portion  of  said 
tax,  the  state  treasurer  shall  repay  the  amount  adjudged  to  have  been  ille- 
gally exacted  without  any  further  act  or  resolve  making  appropriation 
therefor.  Whenever  a  specific  bequest  of  household  furniture,  wearing  ap- 
parel, personal  ornaments  or  similar  articles  of  small  value  is  subject  to  a 
tax  under  the  provisions  of  this  act,  the  state  treasurer  in  his  discretion 
may  abate  such  tax  if  in  his  opinion  the  tax  is  not  of  sufficient  amount  to 
justify  the  labor  and  expense  of  its  collection.  (Laws  1911,  p.  48.) 

§  889.    Reappraisement — Assessment  of  Tax, 

Sec.  13.  If  an  executor  or  administrator  shall  fail  to  file  an  inventory 
and  appraisal  in  the  probate  court  as  provided  in  section  9  of  this  act,  or 
if  the  state  treasurer  is  not  satisfied  with  the  inventory  and  appraisal  which 
is  filed,  the  state  treasurer  may  employ  a  suitable  person  to  appraise  the 
property  and  the  executor  or  administrator  shall  show  the  property  of  the 
decedent  to  such  appraiser  upon  demand,  and  shall  make  and  subscribe  his 
oath  that  the  property  thus  shown  includes  all  the  property  of  the  decedent 
that  has  come  to  his  knowledge  or  possession.  Such  appraiser  shall  pre- 
pare an  inventory  of  said  property,  and  shall  appraise  it  at  its  actual  mar- 
ket value  at  the  time  of  the  decedent's  death  and  shall  return  such  inven- 
tory and  appraisal  to  the  state  treasurer.  The  expense  of  such  appraisal 
shall  be  a  charge  upon  the  estate  of  the  decedent  as  an  expense  of  admin- 
istration in  all  cases  where  an  inventory  and  appraisal  has  not  been  filed  as 
provided  in  said  section  9,  otherwise  the  expense  shall  be  paid  by  the  state 
treasurer.  An  executor  or  administrator  who  shall  neglect  or  refuse  to 
show  the  property  of  the  decedent  to  such  appraiser  upon  demand  or  to 
make  and  subscribe  such  oath  shall  be  liable  to  the  same  penalty  as  for 
a  violation  of  the  provisions  of  said  section  9.  Said  tax  shall  be  assessed 
upon  the  actual  market  value  of  the  property  at  the  time  of  the  decedent's 
death.  Such  value  shall  be  determined  by  the  state  treasurer  and  notified 
by  him  to  the  person  or  persons  by  whom  the  tax  is  payable,  and  such 
determination  shall  be  final  unless  the  value  so  determined  shall  be  reduced 


598  INHERITANCE  TAXATION. 

by  proceedirgs  as  herein  provided.  Upon  the  application  of  any  party 
interested  in  the  succession,  or  of  the  executor,  administrator,  or  trustee, 
made  at  any  time  within  three  months  after  notice  of  such  determination, 
the  probate  court  shall  appoint  three  disinterested  appraisers,  or  with  the 
consent  of  the  state  treasurer,  one  disinterested  appraiser,  who  first  being 
sworn,  shall  appraise  such  property  at  its  actual  market  value,  as  of  the 
date  of  the  death  of  the  decedent  and  shall  make  return  thereof  to  said 
court.  Such  return  when  accepted  by  said  court,  shall  be'  final;  provided, 
that  any  party  aggrieved  by  such  appraisal  shall  have  an  appeal  upon  mat- 
ters of  law.  One-half  of  the  fees  of  said  appraisers,  as  determined  by  the 
judge  of  said  court,  shall  be  paid  by  the  state  treasurer,  and  one-half  of 
said  fees  shall  be  paid  by  the  other  party  or  parties  to  said  proceeding. 
(Laws  1911,  p.  49.) 

§  890.    Appeal — Enforcement  of  Lien. 

Sec.  14.  An  executor,  administrator,  trustee  or  grantee  who  is  aggrieved 
by  the  assessment  of  any  tax  by  the  state  treasurer  as  provided  in  section 
12  may  at  any  time  within  three  months  after  notice  of  such  assessment 
appeal  therefrom  to  the  probate  court  having  jurisdiction  of  the  settlement 
of  the  estate  of  the  decedent,  which  court  shall,  subject  to  appeal  as  in 
other  cases,  hear  and  determine  all  questions  relative  to  said  tax,  and  the 
state  treasurer  shall  represent  the  state  in  any  such  proceeding.  Whenever 
any  real  estate  or  separate  parcel  thereof  is  subject  to  a  lien  created  by  this 
act,  or  any  amendment  thereof,  the  probate  court  shall  have  jurisdiction 
in  like  proceedings  to  make  such  order  or  decree  as  will  otherwise  secure 
to  the  state  the  payment  of  any  tax  due  or  to  become  due  on  such  real 
estate  or  separate  parcel  thereof,  and  upon  the  performance  of  such  order 
or  decree  to  discharge  such  lien.  (Laws  1911,  p.  50.) 

§  891.    Application  by  State  Treasurer  for  Administration. 

See.  15.  If,  upon  the  decease  of  a  person  leaving  an  estate  liable  to  a  tax 
under  the  provisions  of  this  chapter,  a  will  disposing  of  such  estate  is  not 
offered  for  probate,  or  an  application  for  administration  made  within  four 
months  after  such  decease,  the  proper  probate  court,  upon  application  by 
the  state  treasurer,  shall  appoint  an  administrator.  (Laws  1911,  p.  50.) 

§  892.    Account  of  Executor  not  Allowed  Until  Taxes  Paid. 

Sec.  16.  No  account  of  an  executor,  administrator,  or  trustee  shall  be 
allowed  by  the  probate  court  until  the  certificate  of  the  state  treasurer  has 
been  filed  in  said  court,  that  all  taxes  imposed  by  the  provisions  of  this  act 
upon  any  property  or  interest  therein  belonging  to  the  estate  to  be  included 
in  said  account,  and  already  payable,  have  been  paid,  and  that  all  taxes 
which  may  become  due  on  said  estate  have  been  paid,  or  settled  as  here- 
inbefore provided,  or  that  the  payment  thereof  to  the  state  is  secured  by 
deposit  or  by  lien  on  real  estate.  The  certificate  of  the  state  treasurer  as 
to  the  amount  of  the  tax  and  his  receipt  for  the  amount  therein  certified 
shall  be  conclusive  as  to  the  payment  of  the  tax,  to  the  extent  of  said  cer- 
tification. (Laws  1911,  p.  50.) 


NEW  HAMPSHIRE  STATUTE.  599 

$  893.    Appearance  Before  State  Treasurer  In  the  Matter  of  Taxes. 

Sec.  17.  At  any  time  after  the  expiration  of  two  years  from  the  date  of 
the  bond  of  the  executor  or  administrator  of  any  estate  upon  which  the 
tax  has  not  been  determined  as  provided  in  section  12,  or  upon  which  no 
tax  has  been  paid,  the  state  treasurer  may  require  such  executor  or  admin- 
istrator, or  any  person  or  corporation  interested  in  the  succession  to  appear 
at  the  state  treasury,  at  such  time  as  the  treasurer  may  designate  and  then 
and  there  to  produce  for  the  use  of  the  treasurer  in  determining  whether 
or  not  the  estate  is  subject  fo  said  tax  and  the  amount  of  such  tax,  if  any, 
all  books,  papers  or  securities  which  may  be  in  the  possession  or  control 
of  such  executor,  administrator  or  beneficiary  relating  to  such  estate  or 
tax,  and  to  furnish  such  other  information  relating  to  the  same  as  he  may 
be  able  and  the  treasurer  may  require.  Whenever  the  treasurer  shall  desire 
the  attendance  of  an  executor,  administrator  or  beneficiary  as  herein  pro- 
vided, he  shall  issue  a  notice  stating  the  time  when  such  attendance  is 
required,  and  shall  transmit  the  same  by  registered  mail  to  such  person  or 
corporation,  fourteen  days  at  least  before  the  date  when  such  person  or 
corporation  is  required  to  appear.  Jf  a  person  or  corporation  receiving' 
such  notice  neglects  to  attend,  or  to  give  attendance  so  long  as  may  be 
necessary  for  the  purpose  for  which  the  notice  was  issued,  or  refuses  to 
produce  such  books,  papers  or  securities  or  to  furnish  such  information, 
such  person  or  corporation  shall  be  liable  to  a  penalty  of  twenty-five  dol- 
lars ($25)  for  each  offense  which  shall  be  recovered  by  the  state  treasurer 
for  the  use  of  the  state.  The  state  treasurer  may  commence  an  action  for 
the  recovery  of  any  of  said  taxes  at  any  time  after  the  same  become  payable; 
and  also  whenever  the  judge  of  a  probate  court  certifies  to  him  that  the 
final  account  of  an  executor,  administrator  or  trustee  has  been  filed  in  such 
court  and  that  the  settlement  of  the  estate  is  delayed  because  of  the  non- 
payment of  said  tax.  The  probate  court  shall  so  certify  upon  the  appli- 
cation of  any  heir,  legatee  or  other  person  interested  therein,  and  .may 
extend  the  time  of  payment  of  said  tax  whenever  the  circumstances  of  the 
case  require.  (Laws  1911,  p.  50.) 

§  894.    Transfer  of  Stock  or  Obligations  by  Foreign  Executor. 

Sec.  18.  If  a  foreign  executor,  administrator  or  trustee  assigns  or  trans- 
fers any  stock  or  obligation  in  any  national  bank  located  in  this  state  or 
in  any  corporation  organized  under  the  laws  of  this  state,  owned  by  a  de- 
ceased nonresident  at  the  date  of  his  death  and  liable  to  a  tax  under  the 
provisions  of  this  chapter,  the  tax  shall  be  paid  to  the  state  treasurer  at  the 
time  of  such  assignment  or  transfer,  and  if  it  is  not  paid  when  due,  such 
executor,  administrator  or  trustee  shall  be  personally  liable  therefor  until 
it  is  paid.  A  bank  located  in  this  state  or  a  corporation  organized  under 
the  laws  of  this  state  which  shall  record  a  transfer  of  any  share  of  its 
stock  or  of  its  obligations  made  by  a  foreign  executor,  administrator  or 
trustee,  or  issue  a  new  certificate  for  a  share  of  its  stock  or  of  this  trans- 
fer of  an  obligation  at  the  instance  of  a  foreign  executor,  administrator 
or  trustee,  before  all  taxes  imposed  thereon  by  the  provisions  of  this  chap- 
ter have  been  paid,  shall  be  liable  for  such  tax  in  an  action  brought  by  the 
state  treasurer.  (Laws  1911,  p.  51.) 


600  INHERITANCE  TAXATION. 

§  895.    Transfer   of   Securities   or   Assets   Belonging   to   Estate   of   Non- 
resident. 

Sec.  19.  Securities  or  assets  belonging  to  the  estate  of  a  deceased  non- 
resident shall  not  be  delivered  or  transferred  to  a  foreign  executor,  admin- 
istrator, or  legal  representative  of  said  decedent,  unless  such  executor, 
administrator  or  legal  representative  has  been  licensed  to  receive  such  secu- 
rities or  assets  by  the  probate  court  without  serving  notice  upon  the  state 
treasurer  of  the  time  and  place  of  such  intended  delivery  or  transfer  seven 
days  at  least  before  the  time  of  such  delivery  or  transfer.  The  state  treas- 
urer, either  personally  or  by  representative,  may  examine  such  securities 
or  assets  at  the  time  of  such  delivery  or  transfer.  When  such  securities 
or  assets  are  liable  to  a  tax  under  the  provisions  of  this  chapter,  such  tax 
shall  be  paid  before  such  delivery  or  transfer.  Failure  to  serve  such  notice 
or  to  allow  such  examination,  or  delivery  or  transfer  of  such  securities  or 
assets  before  the  payment  of  such  tax  to  the  state  treasurer  shall  render 
the  person  or  corporation  making  the  delivery  or  transfer  liable  in  an 
action  brought  by  the  state  treasurer  to  the  payment  of  the  tax  due  upou 
said  securities  or  assets.  (Laws  1911,  p.  51.) 

§  896.     State  Treasurer  a  Party  to  All  Proceedings. 

Sec.  20.  The  state  treasurer  shall  be  made  a  party  to  all  petitions  by 
foreign  executors,  administrators,  or  trustees  brought  under  the  provisions 
of  this  act,  or  under  section  23  of  chapter  189  of  the  Public  Statutes,  and 
no  decree  shall  be  made  upon  any  such  petition  unless  it  appears  that  notice 
of  such  petition  has  been  served  on  the  state  treasurer  fourteen  days  at 
least  before  the  return  day  of  such  petition.  The  state  treasurer  shall  be 
entitled  to  appear  in  any  proceeding  in  any  court  in  which  the  decree  may 
in  any  way  affect  the  tax  and  no  decree  in  any  such  proceeding  or  upon 
appeal  therefrom  shall  be  binding  upon  the  state  unless  personal  notice  of 
such  proceeding  shall  have  been  given  to  the  state  treasurer.  (Laws  1911, 
p.  52.) 

§  897.    Books  and  Blanks  to  be  Furnished  Probate  Judge. 

See.  21.  The  state  treasurer  shall  provide  the  judges  and  registers  of 
probate  of  the  state  with  such  books  and  blanks  as  are  requisite  for  the 
execution  of  this  act.  (Laws  1911,  p.  52.) 

§  898.     Time  When  Statute  Takes  Effect. 

Sec.  22.  This  act  shall  not  apply  to  estates  of  persons  deceased  prior  to 
the  date  when  it  takes  effect,  or  to  property  passing  by  deed,  grant,  bar- 
gain, sale  or  gift  taking  effect  prior  to  said  date;  but  said  estates  and 
property  shall  remain  subject  to  the  provisions  of  the  laws  in  force  prior  to 
the  passage  of  this  act.  Chapter  64  of  the  Laws  of  1907  is  hereby  repealed, 
except  in  so  far  as  it  applies  to  estates  of  persons  deceased  prior  to  the 
passage  of  this  act.  (Laws  1911,  p.  52.) 

This  act  shall  take  effect  upon  its  passage.  Approved  March  9,  1911. 
(Laws  1911,  p.  52.) 


NEW  JERSEY  STATUTE.  601 


CHAPTER  XLIIL 
NEW  JERSEY  STATUTE. 

(Public  Laws  of  1894,  p.  S18 ;  Public  Laws  of  1898,  p.  106;  Public  Laws  of 
1902,  p.  670;  Public  Laws  of  1903,  p.  128;  Public  Laws  of  1906,  p.  432; 
Public  Laws  of  1908,  p.  200;  Public  Laws  of  1909,  pp.  49,  236,  304,  325; 
Compiled  Statutes  of  1910,  pp.  5301-5311.) 

§  899.  Transfers  Subject  to  Tax — Rates — Persons  Liable — Exemptions. 

§  900.  Estates  for  Years  or  for  Life  and  Remainders. 

§  901.  Expectancies,  Contingent  Estates,  and  Executory  Devises. 

§  902.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  903.  Time  for  Payment — Interest  and  Discount — Bond— Lien. 

§  904.  Penalty  for  Nonpayment  of  Tax. 

§  906.  Collection  of  Tax  by  Executor. 

§  906.  Sale  of  Property  to  Pay  Tax. 

§  907.  Payment  to  State  Treasurer — Receipts — Record*. 

§  908.  Notice  to  Controller  of  Taxable  Transfers. 

§  909.  Refund  of  Tax  on  Proof  of  Debts  After  Distribution. 

§  910.  Transfer  of  Property  of  Nonresident  Decedent. 

$  911.  Liability  of  Property  to  Tax  Due  Prior  to  Passage  of  This  Act. 

§  912.  Valuation  of  Annuities  and  Estates  for  Life  or  for  Years. 

§  913.  Refund  of  Tax  Erroneously  Paid. 

§  914.  Notice  to  Controller  of  Administration  Proceedings. 

§  915.  Examination  of  Papers  and  Records  by  Controller. 

§  916.  Appraisers  and  Appraisement. 

§  917.  Compensation — Penalty  for  Taking  Illegal  Fees^ 

§  918.  Jurisdiction  of  Ordinary. 

§  919.  Citation  to  Delinquent  Taxpayer. 

§  920.  Notice  to  Attorney  General  of  Delinquencies — Proceedings. 

§  921.  Records  to  be  Kept  by  Controller. 

§  922.  Compensation  to  Person  Discovering  Taxable  Transfer.  • 

§  923.  False  Statement  to  Appraiser — Penalty. 

§  924.  Definition  of  Terms. 

§  925.  Constitutionality  of  Sections. 

§  926.  Repeal  of  Inconsistent  Acts — Liens  and  Remedies. 

§  927.  Exemption  of  Certain  Transfers. 

§  928.  Retrospective  Operation  of  Exemption. 

§  929.  Warrant  to  Controller. 

§  899.     Transfers  Subject  to  Tax— Bates— Persons  Liable— Exemptions. 

Sec.  1.  A  tax  shall  be  and  is  hereby  imposed  upon  the  transfer  of  any 
property,  real  or  personal,  of  the  value  of  five  hundred  dollars  or  over,  or 
of  any  interest  therein  or  income  therefrom,  in  trust  or  otherwise,  to  persons 
or  corporations,  in  the  following  cases: 


602  INHERITANCE  TAXATION. 

When  the  transfer  is  by  will  or  by  the  intestate  laws  of  this  state  from 
any  person  dying  seised  or  possessed  of  the  property  while  a  resident  of  the 
state. 

When  the  transfer  is  by  will  or  intestate  law,  of  property  within  the 
state,  and  the  decedent  was  a  nonresident  of  the  state  at  the  time  of  his 
death. 

When  the  transfer  is  of  property  made  by  a  resident  or  by  a  nonresident, 
when  such  nonresident's  property  is  within  this  state,  by  deed,  grant,  bar- 
gain, sale  or  gift  made  in  contemplation  of  the  death  of  the  grantor,  vendor 
or  donor,  or  intended  to  take  effect,  in  possession  or  enjoyment,  at  or  after 
such  death. 

When  any  person  or  corporation  comes  into  the  possession  or  enjoyment, 
by  a  transfer  from  a  resident  or  nonresident  decedent  when  such  nonresi- 
dent decedent's  property  is  within  this  state,  of  an  estate  in  expectancy  of 
any  kind  or  character  which  is  contingent  or  defeasible,  transferred  by  an 
instrument  taking  effect  after  the  passage  of  this  act,  or  of  any  property 
transferred  pursuant  to  a  power  of  appointment  contained  in  any  instrument 
taking  effect  after  the  passage  of  this  act. 

All  taxes  imposed  by  this  act  shall  be  at  the  rate  of  five  per  centum  upon 
the  clear  market  value  of  such  property,  to  be  paid  to  the  treasurer  of  the 
state  of  New  Jersey,  for  the  use  of  said  state,  and  all  administrators,  execu- 
tors, trustees,  grantees,  donees  or  vendees,  shall  be  personally  liable  for 
any  and  all  such  taxes  until  the  same  shall  have  been  paid  as  hereinafter 
directed,  for  which  an  action  of  debt  shall  lie  in  the  na,me  of  the  state  of 
New  Jersey. 

Property  passing  to  churches,  hospitals  and  orphan  asylums,  public  libra- 
ries, Bible  and  tract  societies,  religious,  benevolent  and  charitable  institu- 
tions and  organizations,  or  to  a  father,  mother,  husband,  wife,  child  or 
children,  or  lineal  descendant  born  in  lawful  wedlock,  brother  or  sister,  or 
the  wife  or  widow  of  a  son,  or  the  husband  of  a  daughter,  shall  be  exempt 
from  taxation  under  this  act,  but  no  other  exemption  of  any  kind  shall  be 
allowed1.  (Pub.  Laws  1909,  p.  325;  Comp.  Stats.  1910,  p.  5301.) 

§  900.    Estates  for  Years  or  for  Life  and  Remainders. 

Sec.  2.  When  any  persons  shall  bequeath  or  devise,  convey,  grant,  sell  or 
give  any  property  or  interest  therein,  or  income  therefrom,  to  any  person 
or  corporation  for  life  or  for  a  term  of  years,  and  a  vested  interest  in  the 
remainder  or  corpus  of  said  property  to  any  person,  or  to  any  body  politic 
or  corporate,  the  whole  of  said  property,  so  transferred  as  aforesaid,  shall 
be  appraised  immediately  at  its  clear  market  value,  and  after  deducting 
from  such  appraisement  the  value  of  the  estate  for  life  or  estate  for  a 
term  of  years,  the  tax  on  such  life  estate  or  for  a  term  of  years,  if  taxable 
under  this  act,  shall  be  immediately  levied  and  assessed,  and  the  tax  on  the 
remainder  of  the  property  so  as  aforesaid  transferred,  if  such  property  is 
taxable  under  this  act,  shall  be  levied  and  assessed  immediately,  but  such 
tax  shall  not  become  due  or  payable  until  the  time  or  period  arrives  when 
said  remainderman,  or  his  representatives,  shall  become  entitled  to  the 
actual  possession  or  enjoyment  of  such  property,  and  shall  then  become  due 
and  payable  immediately,  and,  if  not  paid  within  thirty  days,  interest  at 


NEW  JERSEY  STATUTE.  603 

the  rate  of  ten  per  centum  per  annum  shall  be  charged  and  collected  from 
the  time  when  said  tax  became  due  and  payable.  If  the  property  passing 
to  a  remainderman,  as  hereinabove  provided,  be  personal  property,  such 
remainderman,  or  the  executor  or  trustee  of  the  estate,  shall  give  a  bond 
to  the  state  of  New  Jersey  in  double  the  amount  of  the  tax  on  the  property 
of  such  remainderman,  conditioned  to  pay  said  tax,  and  any  interest  which 
may  fall  due  thereon,  said  bond  to  be  approved  as  to  the  form  and  suffi- 
ciency thereof  by  the  attorney  general  of  this  state,  and  any  executor  or 
trustee  who  shall  assign  or  deliver  to  any  such  remainderman  any  personal 
property  liable  to  a  tax  under  this  act,  unless  a  bond  be  given  as  specified 
in  this  section,  or  said  tax  be  paid,  shall  be  personally  liable  for  said  tax 
and  all  interest  due  thereon,  which  liability  may  be  enforced  in  an  action 
of  debt  in  the  name  of  the  state  of  New  Jersey.  (Pub.  Laws  1909,  p.  326; 
Comp.  Stats.  1910,  p.  5304.) 

§  901.    Expectancies,  Contingent  Estates,  and  Executory  Devises. 

Sec.  3.  Where  an  instrument  creates  an  executory  devise,  or  an  estate 
in  expectancy  of  any  kind  or  character  which  is  contingent  or  defeasible, 
the  property  transferred  in  accordance  with  su&h  executory  devise  or  the 
property  in  which  such  contingent  or  defeasible  interest  is  created  by  any 
such  instrument,  shall  be  appraised  immediately  at  its  clear  market  value, 
and  after  deducting  from  such  appraisement  the  value  of  the  life  estate, 
or  estate  for  a  term  of  years,  created  by  such  instrument,  the  tax  on  such 
life  estate  or  estate  for  a  .term  of  years,  if  taxable  under  this  act,  shall  be 
immediately  levied  and  assessed,  but  the  tax  on  the  balance  of  said  ap- 
praised value  of  such  estate  shall  not  be  levied  or  assessed  until  the  person 
or  corporation  entitled  to  said  property  comes  into  the  beneficial  enjoyment, 
seisin  or  possession  thereof,  and  if  taxable,  shall  then  be  taxed.  Where  an 
instrument  creates  a  power  of  appointment,  the  life  estate,  or  estate  for  a 
term  of  years,  created  and  transferred  by  such  instrument,  if  taxable,  shall 
be  immediately  appraised  and  taxed  at  its  clear  market  value,  but  the 
appraisal  and  taxation  of  the  interest  or  interests  in  remainder  to  be  dis- 
posed of  by  the  donee  of  power  shall  be  suspended  until  the  exercise  of  the 
power  of  appointment,  and  shall  then  be  taxed,  if  taxable,  at  the  clear 
market  value  of  such  property,  which  value  of  such  property  shall  be  deter- 
mined as  of  the  date  of  the  death  of  the  creator  of  the  power. 

A  tax  on  an  estate  for  life  or  on  an  estate  for  a  term  of  years,  levied  and 
assessed  as  directed  in  this  section,  shall  be  due  and  payable  as  provided  in 
section  five  of  this  act.  All  other  taxes  levied  and  assessed  as  directed  in 
this  section  and  all  taxes  on  any  property  which  may  be  transferred  to  the 
residuary  legatees,  heir  or  next  of  kin  of  any  decedent,  or  which  may  revert 
to  the  heir  of  any  decedent  by  reason  of  the  failure  of  any  contingency 
upon  which  any  remainder  may  be  limited,  shall  be  due  and  payable  within 
two  months  after  the  person  entitled  to  the  property  shall  come  into  the 
enjoyment,  seisin  or  possession  thereof,  and  if  not  paid  shall  thenceforth 
bear  interest  at  the  rate  of  ten  per  centum  per  annum  until  paid.  No 
executor  or  trustee  shall  turn  over  any  property  of  an  estate  mentioned 
in  this  section  until  the  tax  due  thereon,  and  interest,  if  any,  shall  have 
been  paid  to  the  treasurer  of  this  state,  and  any  executor  or  trustee  who 


604  INHERITANCE  TAXATION. 

shall  turn  over  any  property  prior  to  the  payment  of  the  tar  due  thereon, 
together  with  interest,  shall  be  personally  liable  for  such  tax  and  interest, 
which  said  liability  may  be  enforced  by  an  action  of  debt  in  the  name  of  the 
state  of  New  Jersey. 

The  controller  of  the  treasury  of  this  state,  by  and  with  the  consent 
of  the  attorney  general,  expressed  in  writing,  is  hereby  empowered  and 
authorized  to  enter  into  an  agreement  with  the  executors  or  trustees  of  any 
estate  in  which  remainders  or  expectant  estates  have  been  of  such  a  nature, 
or  so  disposed  and  circumstanced  that  the  taxes  therein  were  held  not 
presently  payable,  or  where  the  interest  of  the  legatees  or  devisees  were  not 
ascertainable  at  the  death  of  the  testator,  grantor,  donor  or  vendor,  and  to 
compound  such  taxes  upon  such  terms  as  may  be  deemed  equitable  and 
expedient;  and  to  grant  discharge  to  said  executors  and  trustees  upon  the 
payment  of  the  taxes  provided  for  in  such  composition;  provided,  however, 
that  no  such  composition  shall  be  conclusive  in  favor  of  said  executors  or 
trustees  as  against  the  interest  of  such  cestuis  que  trust  as  may  possess 
either  present  rights  of  enjoyment,  or  fixed,  absolute  or  indefeasible  rights 
of  future  enjoyment,  or  of  such  as  would  possess  such  rights  in  the  event 
of  the  immediate  termination  of  particular  estates,  unless  they  consent 
thereto,  either  personally,  when  competent,  or  by  guardian  or  committee. 
(Pub.  Laws  1909,  p.  327;  Comp.  Stats.  1910,  p.  5304.) 

§  902.    Bequest  to  Executor  in  Lieu  of  Compensation. 

Sec.  4.  Whenever  a  decedent,  appoints  or  names  one  or  more  executors 
or  trustees,  and  makes  a  bequest  or  devise  of  property  to  them  in  lieu  of 
their  commissions  or  allowances,  which  otherwise  would  be  liable  to  said 
tax,  or  appoints  them  his  residuary  legatees,  and  said  bequest,  devise  or 
residuary  legacy  exceeds  what  would  be  a  reasonable  compensation  for 
their  services,  such  excess  shall  be  liable  to  said  tax,  and  the  ordinary,  or 
the  orphans  court,  having  jurisdiction  in  the  case,  shall  fix  such  compensa- 
tion. (Pub.  Laws  1909,  329;  Comp.  Stats.  1910,  p.  5305.) 

§  903.     Time  for  Payment — Interest  and  Discount — Bond — Lien. 

Sec.  5.  All  taxes  imposed  by  this  act  shall  be  due  and  payable  at  the 
death  of  the  testator,  intestate,  grantor,  donor,  vendor,  unless  in  this  act 
otherwise  provided,  and  if  the  same  are  paid  within  one  year  a  discount  of 
five  per  centum  shall  be  allowed  and  deducted  from  such  taxes;  if  not  paid 
within  one  year  from  the  date  of  the  death  of  the  testator,  intestate, 
grantor,  donor  or  vendor,  such  tax  shall  bear  interest  at  the  rate  of  ten  per 
centum  per  annum,  to  be  computed  from  the  expiration  of  one  year  from 
the  date  of  the  death  of  such  testator,  intestate,  grantor,  donor  or  vendor, 
until  the  same  is  paid,  and  in  all  cases  where  the  executors,  administrators, 
grantees,  donees,  vendees  or  trustees  do  not  pay  such  tax  within  one  year 
from  the  death  of  the  decedent  they  shall  be  required  to  give  a  bond,  in 
the  form  and  effect  prescribed  in  section  two  of  this  act,  for  the  payment 
of  such  tax,  together  with  interest. 

All  taxes  levied  and  assessed  under  this  act  on  the  transfer  of  any  real 
property  shall  be  and  remain  a  lien  on  said  property  until  paid.  (Pub.  Laws 
1909,  p.  329;  Comp.  Stats.  1910,  p.  5305.) 


NEW  JERSEY  STATUTE.  605 

§  904.    Penalty  for  Nonpayment  of  Tax. 

Sec.  6.  The  penalty  of  ten  per  centum  per  annum  imposed  by  section 
five  hereof  for  the  nonpayment  of  said  tax  shall  not  be  charged  where  in 
cases  by  reason  of  claims  made  upon  the  estate,  necessary  litigation  or  other 
unavoidable  cause  of  delay  the  estate  of  any  decedent,  or  a  part  thereof, 
cannot  be  settled  at  the  end  of  a  year  from  the  death  of  the  decedent,  and 
in  such  cases  only  six  per  centum  per  annum  shall  be  charged  upon  the  said 
tax  from  the  expiration  of  such  year  until  the  cause  of  such  delay  is  re- 
moved. (Pub.  Laws  1909,  p.  329;  Comp.  Stats.  1910,  p.  5306.) 

§  905.     Collection  of  Tax  by  Executor. 

Sec.  7.  Any  administrator,  executor  or  trustee  having  in  charge  or 
trust  any  legacy  or  property  for  distribution,  subject  to  said  tax,  shall 
deduct  the  tax  therefrom,  or  if  the  legacy  or  property  be  not  money  he 
shall  collect  the  tax  thereon  upon  the  appraised  value  thereof  from  the 
legatee  or  persons  entitled  to  such  property,  and  he  shall  not  deliver  or  be 
compelled  to  deliver  any  specific  legacy  or  property  subject  to  tax  to  any 
person  until  he  shall  have  collected  the  tax  tbereon,  and  whenever  any  such 
legacy  shall  be  charged  upon  or  payable  out  of  real  estate,  the  heir  or 
devisee,  before  paying  the  same  shall  deduct  said  tax  therefrom  and  pay 
the  same  to  the  executor,  administrator  or  trustee,  and  the  payment  thereof 
shall.be  enforced  by  the  executor,  administrator  or  trustee  in  the  same 
manner  that  the  payment  of  such  legacy  might  be  enforced;  if,  however, 
such  legacy  be  given  in  money  to  any  person  for  a  limited  period  he  shall 
retain  the  tax  upon  the  whole  amount,  but  if  it  be  not  in  money  he  shall 
make  application  to  the  court  having  jurisdiction  of  his  accounts  to  make 
an  apportionment,  if  the  case  require  it,  of  the  sum  to  be  paid  into  his 
hands  by  such  legatees,  and  for  such  further  order  relative  thereto  as  the 
case  may  require.  (Pub.  Laws  1909,  p.  330;  Comp.  Stats.  1910,  p.  5306.) 

§  906.     Sale  of  Property  to  Pay  Tax. 

Sec.  8.  All  executors,  administrators  and  trustees  shall  have  full  power 
to  sell  so  much  of  the  property  of  the  decedent  as  will  enable  them  to  pay 
said  tax  in  the  same  manner  as  they  may  be  enabled  by  law  to  do  for  the 
payment  of  debts  of  their  testators  and  intestates,  and  the  amount  of  said 
tax  shall  be  paid  as  hereinafter  directed.  (Pub.  Laws  1909,  p.  330;  Comp. 
Stats.  1910,  p.  5306.) 

§  907.    Payment  to  State  Treasurer — Receipts — Records. 

Sec.  9.  Any  sum  of  money  retained  by  an  executor,  administrator  or 
trustee,  or  paid  into  his  hands  for  any  tax  due  under  this  act,  shall  be  paid 
by  him  within  thirty  days  thereafter,  to  the  treasurer  of  this  state,  and 
the  person  so  paying  shall  be  entitled  to  receive  a  receipt  signed  by  the 
treasurer  of  this  state  and  countersigned  by  the  controller  thereof,  for 
such  payment,  which  receipt  shall  be  a  proper  voucher  in  the  settlement  of 
the  account  of  any  such  executor,  administrator  or  trustee;  such  person  so 
paying,  in  addition  to  the  foregoing  receipt,  shall,  if  the  tax  paid  be  in 
part  or  in  whole  upon  real  property,  be  entitled  to  receive  an  additional 


606  INHERITANCE   TAXATION. 

receipt,  signed  by  the  treasurer  of  this  state  and  countersigned  by  the 
controller  thereof,  in  which  shall  be  designated  upon  what  real  property, 
if  any,  said  tax  has  been  paid,  and  by  whom  paid,  and  whether  or  not  it 
is  in  full  of  said  tar  on  said  real  property,  and  said  receipt  may  be  recorded 
in  the  clerk's  office  of  the  county  in  which  said  real  property  is  situated,  in 
a  book  which  shall  be  kept  by  said  clerk  for  such  purpose  and  be  labeled 
"collateral  tax."  (Pub.  Laws  1909,  p.  330;  Comp.  Stats.  1910 ,  p.  5306.) 

§  908.    Notice  to  Controller  of  Taxable  Transfers. 

Sec.  10.  Whenever  any  of  the  real  estate  of  which  any  decedent  may  die 
eeis«d  shall  pass  to  any  body  politic  or  corporate,  or  to  any  person  other 
than  the  father,  mother,  husband,  wife,  child,  or  lineal  descendant  born  in 
lawful  wedlock,  brother  or  sister,  wife  or  widow  of  a  son,  or  husband  of  a 
daughter,  or  in  trust  for  them,  or  some  of  them,  it  shall  be  the  duty  of 
the  executors,  administrators  or  trustees  of  such  decedent  to  give  informa- 
tion thereof  in  writing  to  the  controller  of  the  treasury  of  this  state 
within  six  months  after  they  undertake  the  execution  of  their  respective 
duties,  or,  if  the  fact  be  not  known  to  them  within  that  period,  then  within 
one  month  after  the  same  shall  have  come  to  their  knowledge.  (Pub.  Laws 
1909,  p.  331;  Comp.  Stats.  1910,  p.  5307.) 

§  909.     Refund  of  Tax  on  Proof  of  Debts  After  Distribution. 

See.  11.  Whenever  any  debts  shall  be  proven  against  the  estate  of  the 
decedent,  after  the  payment  of  the  legacies  or  distribution  of  property  from 
which  the  said  tax  has  been  deducted,  or  upon  which  it  has  been  paid,  and 
a  refund  is  made  by  the  legatee,  devisee,  heir,  or  next  of  kin,  a  proportion 
of  the  tax  so  paid  shall  be  repaid  to  him  by  th.e  executor,  administrator  or 
trustee,  if  the  said  tax  has  not  been  paid  to  the  state  treasurer,  or  by  the 
state  treasurer,  if  the  same  has  been  paid  into  the  state  treasury.  (Pub. 
Laws  1909,  p.  331;  Comp.  Stats.  1910,  p.  5307.) 

§  910.     Transfer  of  Property  of  Nonresident  Decedent. 

Sec.  12.  If  a  foreign  executor,  administrator  or  trustee  shall  assign 
or  transfer  any  stock  or  obligations  in  this  state  standing  in  the  name  of  a 
decedent,  or  standing  in  the  joint  names  of  such  a  decedent  and  one  or  more 
persons,  or  in  trust  for  a  decedent,  liable  to  any  such  tax,  the  tax  shall  be 
paid  to  the  treasurer  of  this  state  on  the  transfer  thereof.  No  corporation 
of  this  state  shall  transfer  any  such  stock,  unless  notice  of  the  time  of  such 
intended  transfer  be  served  upon  the  controller  of  the  treasury  of  this 
state  at  least  ten  days  prior  to  such  transfer,  nor  until  said  controller 
shall  consent  thereto  in  writing.  Any  corporation  making  such  a  transfer 
without  first  obtaining  the  consent  of  the  controller  of  the  treasury  as 
aforesaid  shall  be  liable  for  the  amount  of  any  tax  which  may  thereafter 
be  assessed  on  account  of  the  transfer  of  such  stock,  together  with  the 
interest  thereon,  and  in  addition  thereto  a  penalty  of  one  thousand  dollars, 
which  liability  for  such  tax  and  interest  and  said  penalty  herein  prescribed 
may  be  enforced  in  an  action  of  debt  in  the  name  of  the  state  of  New 
Jersey. 


NEW  JERSEY  STATUTE.  607 

On  the  transfer  of  property  in  this  state  of  a  nonresident  decedent,  if  all 
or  any  part  of  the  estate  of  such  decedent  wherever  situated  shall  pass  to 
persons  or  corporations  who  would  have  been  taxable  under  this  act,  if  such 
decedent  had  been  a  resident  of  this  state,  such  property  located  within  this 
state  shall  be  subject  to  a  tax,  which  said  tax  shall  bear  the  same  ratio  to 
the  entire  tax  which  the  said  estate  of  such  decedent  would  have  been 
subject  to  under  this  act  if  such  nonresident  decedent  had  been  a  resident 
of  this  state,  as  such  property  located  in  this  state  bears  to  the  entire 
estate  of  such  nonresident  decedent  wherever  situated;  provided,  that  noth- 
ing this  clause  contained  shall  apply  to  any  specific  bequest  or  devise  of  any 
property  in  this  state.  (Pub.  Laws  1909,  p.  331;  Comp.  Stats.  1910,  p.  5307.) 

§  911.    Liability  of  Property  to  Tax  Due  Prior  to  Passage  of  This  Act. 

Sec.  13.  The  controller  of  the  treasury  of  this  state,  either  personally 
or  by  any  of  his  employees,  may  investigate  the  question  of  the  liability  of 
any  property  to  any  tax  due  prior  to  the  passage  of  this  act,  and  if  said 
controller  is  satisfied  that  any  taxes  are  due  this  state,  he  shall  report  such 
fact  to  the  register  of  the  prerogative  court,  or  surrogate  of  the  proper 
county,  whereupon  said  register  or  surrogate  shall  cause  said  property  to  be 
taxed.  (Pub.  Laws  1909,  p.  332;  Comp.  Stats.  1910,  p.  5308.) 

§  912.    Valuation  of  Annuities  and  Estates  for  Life  or  for  Years. 

Sec.  14.  In  determining  the  value  of  a  life  estate,  annuity,  or  estate 
for  a  term  of  years,  the  American  experience  table  of  mortality,  with  inter- 
est at  the  rate  of  five  per  centum  per  annum  shall  be  used.  (Pub.  Laws 
1909,  p.  333;  Comp.  Stats.  1910,  p.  5308.) 

§  913.     Refund  of  Tax  Erroneously  Paid. 

Sec.  15.  When  any  amount  of  said  tax  shall  have  been  paid  errone- 
ously to  the  state  treasurer,  it  shall  be  lawful  for  the  controller  of  the 
treasury,  on  satisfactory  proof  rendered  to  him  of  such  erroneous  payments, 
to  draw  his  warrant  on  the  state  treasurer,  in  favor  of  the  executor,  ad- 
ministrator, person  or  persons  who  have  paid  any  such  tax  in  error,  or  who 
may  be  lawfully  entitled  to  receive  the  same,  for  the  amount  of  such  tax 
BO  paid  in  error;  provided,  that  all  such  applications  for  the  repayment  of 
such  tax  shall  be  made  within  two  years  from  the  date  of  such  payment. 
(Pub.  Laws  1909,  p.  333;  Comp.  Stats.  1910,  p.  5308.) 

§  914.    Notice   to   Controller  of  Administration  Proceedings. 

Sec.  16.  The  register  of  the  prerogative  court  and  every  surrogate  of 
any  county  in  this  state  shall,  within  ten  days  after  the  probate  of  any 
will,  either  foreign  or  domestic,  of  the  filing  of  a  copy  of  any  foreign  will, 
or  the  taking  out  of  letters  of  administration,  notify,  in  writing,  the  con- 
troller of  the  treasury  of  this  state  of  such  probate  or  administration;  and 
any  surrogate  or  the  register  of  the  prerogative  court  failing  to  notify  said 
controller  in  writing  of  the  probate  of  any  will,  or  the  filling  of  a  copy 
of  any  foreign  will,  or  the  taking  out  of  any  letters  of  administration,  shall 
be  liable  to  a  penalty  of  two  hundred  dollars,  to  be  recovered  in  an  action 


608  INHERITANCE   TAXATION. 

of  debt  in  the  name  of  the  state  of  New  Jersey.     (Pub.  Laws  1909,  p.  333  j 
Comp.  Stats.  1910,  p.  5308.) 

§  915.    Examination  of  Papers  and  Records  by  Controller. 

Sec.  17.  The  controller  of  the  treasury  of  this  state,  either  personally 
or  by  his  assistant  or  other  employee,  is  hereby  empowered  to  examine  any 
and  all  papers,  documents  and  files  which  now  are  or  hereafter  may  be 
filed  or  lodged  with  the  register  of  the  prerogative  court,  or  with  the  sur- 
rogate of  any  county  or  with  any  other  official  of  the  state  or  of  any 
municipality  thereof,  or  with  any  person  or  corporation,  for  the  purpose 
of  ascertaining  what,  if  any,  property  is,  or  shall  be,  liable  to  the  payment 
of  the  tax  provided  for  by  this  act.  The  sum  of  ten  thousand  dollars  is 
hereby  appropriated  to  the  controller  of  the  treasury  of  this  state  for 
the  purpose  of  enabling  said  controller  to  carry  out  the  provisions  of  this 
act.  (Pub.  Laws  1909,  p.  333;  Comp.  Stats.  1910,  p.  5308.) 

§  916.    Appraisers  and  Appraisement. 

Sec.  18.  In  order  to  fix  the  value  of  property  of  persons  whose  estates 
shall  be  liable  to  the  payment  of  a  tax  under  this  act,  whether  the  same 
be  in  the  ownership  of  a  resident  or  nonresident  decedent,  the  controller 
of  the  treasury  of  this  state  on  the  application  of  any  interested  party, 
or  upon  his  own  motion,  shall  appoint  some  competent  person  as  appraiser 
as  often  as  and  whenever  occasion  may  require.  Every  such  appraiser 
shall  forthwith  give  nbtice,  by  mail,  to  such  persons  as  the  controller  of 
the  treasury  of  this  state  shall  direct,  of  the  time  and  place  when  and 
where  he  will  appraise  such  property.  He  shall  at  such  time  and  place 
appraise  the  same  at  its  fair  market  value,  and  for  that  purpose  the  said 
appraiser  is  authorized  to  issue  subpoenas  and  to  compel  the  attendance  of 
witnesses,  and  to  take  the  evidence  of  such  witnesses  under  oath  concern- 
ing such  property  and  the  value  thereof,  and  he  shall  make  report  thereof, 
and  of  such  value,  in  writing  to  said  controller  of  the  treasury,  together 
with  such  other  facts  in  relation  thereto  as  the  said  controller  of  the 
treasury  may,  by  order,  require,  which  report  and  other  data  required  by 
said  controller  shall  be  filed  in  the  office  of  such  controller,  and  from 
said  report  the  said  controller  of  the  treasury  shall  forthwith  assess  and 
fix  the  cash  value  of  such  estate  and  levy  the  tax  to  which  the  same  is 
liable,  and  shall  immediately  give  notice  thereof,  by  mail,  to  all  parties 
known  by  said  controller  of  the  treasury  to  be  interested  therein.  Any 
person  or  corporation  dissatisfied  with  said  appraisement  or  assessment  may 
appeal  therefrom  to  the  ordinary  of  this  state  within  sixty  days  after  the 
making  and  filing  of  such  assessment,  on  giving  a  bond,  approved  by  the 
ordinary  of  this  state,  conditioned  to  pay  said  tax  so  as  aforesaid  levied 
by  the  said  controller  of  the  treasury,  together  with  interest  and  costs, 
if  the  said  tax  be  affirmed  by  the  ordinary.  Any  person  failing  to  attend 
before  an  appraiser  after  service  of  a  subpoena,  or  refusing  to  give  evi- 
dence concerning  any  estate,  shall  be  liable  to  a  penalty  of  two  hundred 
dollars,  to  be  recovered  in  an  action  of  debt  by  the  controller  of  the 
treasury.  (Pub.  Laws  1909,  p.  334;  Comp.  Stats.  1910,  p.  5309.) 


NEW  JERSEY  STATUTE.  609 

§  917.     Compensation — Penalty  for  Taking  Illegal  Fees. 

Sec.  19.  Any  appraiser  appointed  pursuant  to  the  provisions  of  this  act 
who  shall  take  any  fee  or  reward,  either  directly  or  indirectly,  from  any 
executor  or  administrator,  or  any  other  person  liable  to  pay  any  tax  or 
any  portion  thereof,  under  the  provisions  of  this  act,  shall  be  guilty  of  a 
misdemeanor,  and,  on  conviction,  shall  be  punished  by  a  fine  not  exceeding 
one  thousand  dollars,  or  by  imprisonment  not  exceeding  one  year,  or  both, 
at  the  discretion  of  the  court,  and,  in  addition  thereto,  the  controller  of 
the  treasury  of  -this  state  shall  immediately  dismiss  such  appraiser  from 
his  employment.  The  compensation  of  said  appraisers  shall  be  a  sum  not 
exceeding  five  dollars  per  day,  to  be  fixed  and  determined  upon  by  the  said 
controller  of  the  treasury,  and  to  be  paid  out  of  the  treasury  of  this  state. 
Such  appraisers  sXall  also  be  reimbursed  for  all  actual  expenses  incurred 
in  the  discharge  of  their  duties.  (Pub.  Laws  1909,  p.  335;  Comp.  Stats. 
1910,  p.  5309.) 

§  918.    Jurisdiction  of  Ordinary. 

Sec.  20.  The  ordinary  of  this  state  shall  have  jurisdiction  to  hear  and 
determine  all  questions  in  relation  to  any  tax  levied  under  the  provisions 
of  this  act.  (Pub.  Laws  1909,  p.  335;  Comp.  Stats.  1910,  p.  5309.) 

§  919.     Citation  to  Delinquent  Taxpayer. 

Sec.  21.  If  it  shall  appear  to  the  controller  of  the  treasury  of  this 
state  that  any  tax  which  has  accrued  under  this  act  has  not  been  paid 
according  to  law  said  controller  shall  report  such  fact,  in  writing,  to  the 
register  of  the  prerogative  court,  and  said  register  shall  issue  a  citation 
citing  the  persons  or  corporations  interested  in  the  property  liable  to  said 
tax  to  appear  before  the  ordinary  on  a  certain  day,  not  more  than  three 
months  from  the  date  of  such  citation,  and  show  cause  why  such  tax  should 
not  be  paid;  the  service  of  such  citation  and  the  subsequent  proceedings  had 
thereon  shall  conform  to  the  practice  prevailing  in  the  prerogative  court.  Upon 
the  making  of  any  decree  the  register  of  the  prerogative  court  shall,  upon  the 
request  of  the  controller  of  the  treasury  of  this  state  furnish  one  or  more 
copies  of  said  decree,  and  the  same  shall  be  docketed  and-  filed*  by  the  clerk 
of  the  supreme  court,  or  by  the  county  clerk  of  any  county  in  this  state,  upon 
the  request  of  the  controller  of  the  treasury  of  this  state,  and  the  same  shall 
have  the  same  effect  as  a  lien  by  judgment,  and  execution  shall  issue  thereon 
according  to  the  rules  and  practice  appertaining  to  other  judgments  docketed 
and  filed  with  said  respective  clerks.  (Pub.  Laws  1909,  p.  335;  Comp.  Stats. 
1910,  p.  5310.) 

§  920.    Notice  to  Attorney  General  of  Delinquencies — Proceedings. 

Sec.  22.  Whenever  the  controller  of  the  treasury  of  this  state  shall 
have  reason  to  believe  that  any  tax  is  due  and  unpaid  under  this  act,  after 
the  neglect  and  refusal  of  the  persons  or  corporations  interested  in  the 
property  and  liable  to  said  tax  to  pay  the  same,  he  shall  notify  the  attorney 
general  of  this  state,  in  writing,  of  such  failure  to  pay  such  tax,  and  the 
said  attorney  general,  when  so  notified,  if  he  have  probable  cause  to  be- 
89 


610  INHERITANCE   TAXATION. 

lieve  that  a  tax  is  due  and  unpaid,  shall  prosecute  the  proceeding  before 
the  ordinary  of  this  state,  as  provided  for  in  section  twenty-one  of  this 
act,  and  the  state  treasurer  shall,  on  the  warrant  of  the  controller,  pay 
all  the  expenses  of  said  proceeding.  (Pub.  Laws  1909,  p.  336;  Comp.  Stats. 
1910,  p.  5310.) 

§  921.     Records  to  be  Kept  by  Controller. 

Sec.  23.  The  controller  of  the  treasury  of  this  state  shall  keep  a  record 
in  his  department  of  all  returns  made  by  appraisers,  the  cash  value  of  an- 
nuities, life  estates  and  term  of  years,  and  the  amount  of  all  taxes  assessed 
by  him;  in  addition  to  the  foregoing  the  said  controller  may  enter  in 
said  books  all  other  information  and  data  which  he  may  deem  desirable 
or  proper.  (Pub.  Laws  1909,  p.  336;  Comp.  Stats.  1910,  p.  5310.) 

§  922.     Compensation  to  Person  Discovering  Taxable  Transfer. 

Sec.  24.  'Whenever  a  resident  of  this  state  has  died,  or  shall  hereafter 
die,  testate  or  intestate,  seised  or  possessed  of  any  property  liable  to  the 
payment  of  a  tax  under  the  provisions  of  this  act,  and  no  letters  testa- 
mentary or  of  administration  have  or  shall  have  been  taken  out  on  such 
estate  within  one  year  from  the  date  of  the  death  of  such  person,  or  when- 
ever there  is  property,  real  or  personal,  within  this  state  owned  by  a  non- 
resident decedent  which  is  liable  to  the  payment  of  a  tax  under  this  act, 
and  such  nonresident  decedent  has  been  deceased  for  a  period  of  three 
months  without  the  tax  due  this  state  having  been  paid;  it  shall  be  lawful 
for  the  controller  of  the  treasury  of  this  state  to  enter  into  an  agreement 
in  writing,  with  any  person  giving  him  information  of  the  existence  of 
property  so  liable  to  a  tax,  to  pay  to  such  person  or  persons  out  of  any 
sum  which  may  be  collected  from  any  such  estate  an  amount  not  exceeding 
ten  per  centum  thereof.  (Pub.  Laws  1909,  p.  336;  Comp.  Stats.  1910, 
p.  5310.) 

§  923.    False  Statement  to  Appraiser— Penalty. 

Sec.  25.  Every  executor,  administrator,  trustee,  grantee,  donee  or  ven- 
dee who  willfully  and  knowingly  subscribes  or  makes  any  false  statement 
of  facts,  or  knowingly  subscribes  or  exhibits  any  false  paper  or  false  report 
with  intent  to  deceive  any  appraiser  appointed  pursuant  to  the  provisions 
of  this  act,  shall  be  guilty  of  a  misdemeanor  and  punished  accordingly. 
(Pub.  Laws  1909,  p.  337;  Comp.  Stats.  1910,  p.  5310.) 

§  924.    Definition  of  Terms. 

Sec.  26.  The  words  "estate"  and  "property,"  wherever  used  in  this  act, 
except  where  the  subject  or  context  is  repugnant  to  such  construction  shall 
be  construed  to  mean  the  interest  of  the  testator,  intestate,  grantor,  bar- 
gainer or  vendor,  passing  or  transferred  to  the  individual  or  specific  lega- 
tee, devisee,  heir,  next  of  kin,  grantee,  donee  or  vendee,  not  exempt  under 
the  provisions  of  this  act,  whether  such  property  be  situated  within  or 
without  this  state.  The  word  "transfer,"  as  used  in  this  act,  shall  be  taken 
to  include  the  passing  of  property,  or  any  interest  therein,  in  possession  or 


NEW  JERSEY  STATUTE.  61  ] 

enjoyment,  present  or  future,  by  distribution  by  statute,  descent,  devise, 
bequest,  grant,  deed,  bargain,  sale  or  gift.  (Pub.  Laws  1909,  p.  337;  Comp. 
Stats.  1910,  p.  5311.) 

§  925.     Constitutionality  of  Sections. 

Sec.  27.  In  case  for  any  reason  any  section  or  any  provisions  of  this 
act  shall  be  questioned  in  any  court,  and  shall  be  held  to  be  unconstitu- 
tional or  invalid,  the  same  shall  not  be  held  to  affect  any  other  section 
or  provision  of  this  act.  (Pub.  Laws  1909,  p.  337;  Comp.  Stats.  1910,  p. 
5311.) 

§  926.    Repeal  of  Inconsistent  Acts — Liens  and  Remedies. 

Sec.  28.  All  acts  and  parts  of  acts  inconsistent  with  the  provisions  of 
this  act  are  hereby  repealed,  but  nothing  in  this  repealer  shall  affect  or 
impair  the  lien  of  any  taxes  heretofore  assessed,  or  any  tax  due  and  pay- 
able, or  any  remedies  for  the  collection  of  the  same,  or  to  surrender  any 
remedies,  powers,  rights  or  privileges  acquired  by  the  state  under  any  act 
heretofore  passed,  or  to  relieve  any  person  or  corporation  from  any  penalty 
imposed  by  said  acts.  (Pub.  Laws'  1909,  p.  337;  Comp.  Stats.  1910,  p.  5311.) 

SUPPLEMENT. 

§  927.    Exemption  of  Certain  Transfers. 

Sec.  1.  All  property  passing  to  any  executor,  trustee  or  public  corpora- 
tion for,  or  to  be  expended  in,  the  erection  of  a  public  monument  or  public 
memorial  in  this  state,  shall  be  exempt  from  the  payment  of  taxes  under 
the  act  to  which  this  is  a  supplement.  (Pub.  Laws  1910,  p.  42.) 

§  928.     Retrospective  Operation  of  Exemption. 

Sec.  2.  The  exemption  from  the  payment  of  such  taxes,  hereby  provided 
for,  shall  extend  to  all  property  that  may  have  heretofore  passed  for  such 
purpose  as  well  as  to  all  property  that  may  hereafter  pass  for  such  purpose. 
(Pub.  Laws  1910,  p.  42.) 

§  929.    Warrant  to  Controller. 

Sec.  1.  The  controller  of  the  treasury  of  this  state,  after  the  close  of 
each  fiscal  year,  shall  draw  his  warrant  on  the  treasurer  in  favor  of  the 
collector  of  each  county  for  five  per  centum  of  the  amount  of  transfer  tax 
collected  from  property  of  resident  decedents  in  said  county  during  said 
fiscal  year,  whereupon  the  same  shall  be  paid  out  of  the  treasury  of  this 
state;  provided,  however,  that  this  act  shall  only  become  operative  if  a 
bill  entitled  "An  act  to  tax  the  transfer  of  property  of  resident  and  non- 
resident decedents  by  devise,  bequests,  descent,  distribution  by  statute,  gift, 
deed,  grant,  bargain  and  sale,  in  certain  cases,"  shall  become  a  law;  and 
provided  further,  that  for  the  fiscal  year  ending  October  thirty-first,  one 
thousand  nine  hundred  and  nine,  only  five  per  centum  of  the  transfer  tax 
collected  from  the  time  said  act  becomes  a  law  to  said  thirty-first  day  of 
October  shall  be  paid.  (Pub.  Laws  1909,  p.  325.) 


612  INHERITANCE   TAXATION. 


CHAPTER  XLIV. 
NEW  YORK  STATUTE. 

(S  Birdseye's  Eev.  Stats.,  Codes  and  Gen.  Laws  1901,  pp.  S591-S604;  Tax  Law 
1909,  pp.  1SS-145;  Laws  of  1911,  pp.  1958,  SS1S4.) 

§  930.  Transfers  Subject  to  Tax. 

§  931.  Exceptions  and  Limitations. 

§  932.  Rate  of  Taxation. 

§  933.  Accrual  and  Payment  of  Tax. 

§  934.  Discount  and  Interest. 

§  935.  Collection  of  Tax  by  Executors — Lien. 

§  936.  Refund  of  Tax  Erroneously  Paid. 

§  937.  Devises  and  Bequests  in  Lieu  of  Commissions. 

§  938.  Liability  of  Certain  Corporations  to  Tax. 

§  939.  Jurisdiction  of  the   Surrogate. 

§  940.  Appointment  of  Appraisers,  Stenographers  and  Clerks. 

§  941.  Proceedings  by  Appraiser. 

§  942.  Determination  of  Surrogate. 

§  943.  Appeal  and  Other  Proceedings. 

§  944.  Composition  of  Transfer  Tax  upon  Certain   Estates. 

§  945.  Surrogates'  Assistants  in  New  York,  Kings  and  Other  Counties. 

§  946.  Proceedings  by  District  Attorneys. 

§  947.  Receipts  from  County  Treasurer  or  Controller. 

§  948.  Fees  of  County  Treasurer. 

§  949.  Books  and  Forms  to  be  Furnished  by  the  State  Controller. 

§  950.  Reports  of  Surrogate  and  County  Clerk. 

§  951.  Reports  of  County  Treasurer. 

§  952.  Report    of    State    Controller — Payment    of    Taxes — Refunds    in    Cer- 
tain Cases. 

§  953.  Application  of  Taxes. 

§  954.  Definitions. 

§  955.  Exemptions  in  Article  One  not  Applicable. 

§  956.  Limitation  of  Time. 

§  930.     Transfers  Subject  to  Tax. 

Sec.  (230.)  A  tax  shall  be  and  is  hereby  imposed  upon  the  transfer  of 
any  tangible  property  within  the  state  and  of  intangible  property,  or  of 
any  interest  therein  or  income  therefrom,  in  trust  or  otherwise,  to  persons 
or  corporations  in  the  following  cases,  subject  to  the  exemptions  and  limita- 
tions hereinafter  prescribed: 

When  the  transfer  is  by  will  or  by  the  intestate  laws  of  this  state  of  any 
intangible  property,  or  of  tangible  property  within  the  state,  from  any  person 
dying  seised  or  possessed  thereof  while  a  resident  of  the  state. 

When  the  transfer  is  by  will  or  intestate  law,  of  tangible  property  within 
the  state,  and  the  decedent  was  a  nonresident  of  the  state  at  the  time  of  his 
death. 


NEW  YORK  STATUTE.  613 

Whenever  the  property  of  a  resident  decedent,  or  the  property  of  a  non- 
resident decedent  within  this  state,  transferred  by  will  is  not  specifically  be- 
queathed or  devised,  such  property  shall,  for  the  purposes  of  this  article, 
be  deemed  to  be  transferred  proportionately  to  and  divided  pro  rata  among 
all  the  general  legatees  and  devisees  named  in  said  decedent's  will,  including 
all  transfers  under  a  residuary  clause  of  such  will. 

When  the  transfer  is  of  intangible  property,  or  of  tangible  property  within 
the  state,  made  by  a  resident,  or  of  tangible  property  within  the  state  made 
by  a  nonresident,  by  deed,  grant,  bargain,  sale  or  gift  made  in  contemplation 
of  the  death  of  the  grantor,  vendor  or  donor  or  intended  to  take  effect 
in  possession  or  enjoyment  at  or  after  such  death. 

When  any  such  person  or  corporation  becomes  beneficially  entitled,  in 
possession  or  expectancy,  to  any  property  or  the  income  thereof  by  any  such 
transfer  whether  made  before  or  after  the  passage  of  this  chapter. 

Whenever  any  person  or  corporation  shall  exercise  a  power  of  appointment 
derived  from  any  disposition  of  property  made  either  before  or  after  the 
passage  of  this  chapter,  such  appointment  when  made  shall  be  deemed  a 
transfer  taxable  under  the  provisions  of  this  chapter  in  the  same  manner  as 
though  the  property  to  which  such  appointment  relates  belonged  absolutely 
to  the  donee  of  such  power  and  had  been  bequeathed  or  devised  by  such 
donee  by  will'. 

The  tax  imposed  hereby  shall  be  upon  the  clear  market  value  of  such 
property,  at  the  rates  hereinafter  prescribed.  (Tax  Laws  1911,  p.  1958.) 

§  931.     Exceptions  and  Limitations. 

Sec.  (231.)  Any  property  devised  or  bequeathed  for  religious  ceremonies, 
observances  or  commemorative  services  of  or  for  the  deceased  donor,  or  to 
any  person  who  is  a  bishop  or  to  any  religious,  educational,  charitable,  mis- 
sionary, benevolent,  hospital  or  infirmary  corporation,  wherever  incorporated, 
including  corporations  organized  exclusively  for  Bible  or  tract  purposes  shall 
be  exempted  from  and  not  subject  to  the  provisions  of  this  article.  There 
shall  also  be  exempted  from  and  not  subject  to  the  provisions  of  this  article 
personal  property  other  than  money  or  securities  bequeathed  to  a  corporation 
or  association  wherever  incorporated  or  located,  organized  exclusively  for 
the  moral  or  mental  improvement  of  men  or  women  or  for  scientific,  literary, 
library,  patriotic,  cemetery  or  historical  purposes  or  for  the  enforcement 
of  laws  relating  to  children  or  animals  or  for  two  or  more  of  such  purposes 
and  used  exclusively  for  carrying  out  one  or  more  of  such  purposes.  But 
no  such  corporation  or  association  shall  be  entitled  to  such  exemption  if  any 
officer,  member  or  employee  thereof  shall  receive  or  may  be  lawfully  entitled 
to  receive  any  pecuniary  profit  from  the  operations  thereof  except  reasonable 
compensation  for  services  in  effecting  one  or  more  of  such  purposes  or  as 
proper  beneficiaries  of  its  strictly  charitable  purposes;  or  if  the  organization 
thereof  for  any  such  avowed  purpose  be  a  guise  or  pretense  for  directly  or 
indirectly  making  any  other  pecuniary  profit  for  such  corporation  or  associa- 
tion or  for  any  of  its  members  or  employees  or  if  it  be  not  in  good  faith 
organized  or  conducted  exclusively  for  one  or  more  of  such,  purposes.  (Tax 
Laws  1909,  p.  124;  Laws  1911,  p.  1959.) 


614  INHERITANCE   TAXATION. 

§  932.    Bate  of  Taxation. 

Sec.  (231a.)  Upon  a  transfer  taxable  under  this  article  of  property  or 
any  beneficial  interest  therein,  of  an  amount  in  excess  of  the  value  of  five 
thousand  dollars  to  any  father,  mother,  husband,  wife,  child,  brother,  sister, 
wife  or  widow  of  a  son,  or  the  husband  of  a  daughter,  or  any  child  or 
children  adopted  as  such  in  conformity  with  the  laws  of  this  state,  of  the 
decedent,  grantor,  donor,  or  vendor,  or  to  any  child  to  whom  any  such 
decedent,  grantor,  donor,  or  vendor  for  not  less  than  ten  years  prior  to  such 
transfer  stood  in  the  mutually  acknowledged  relation  of  a  parent,  provided, 
however,  such  relationship  began  at  or  before  the  child's  fifteenth  birthday 
and  was  continuous  for  said  ten  years  thereafter,  or  to  any  lineal  descendant 
of  such  decedent,  grantor,  donor,  or  vendor  born  in  lawful  wedlock,  the  tax 
on  such  transfer  shall  be  at  the  rate  of 

One  per  centum  on  any  amount  in  excess  of  five  thousand  dollars  up  to 
the  sum  of  fifty  thousand  dollars. 

Two  per  centum  on  any  amount  in  excess  of  fifty  thousand  dollars  up  to 
the  sum  of  two  hundred  and  fifty  thousand  dollars. 

Three  per  centum  on  any  amount  in  excess  of  two  hundred  and  fifty 
thousand  dollars  up  to  the  sum  of  one  million  dollars. 

Four  per  centum  on  any  amount  in  excess  of  one  million  dollars. 

Upon  a  transfer  taxable  under  this  article  of  property  or  any  beneficial 
interest  therein  of  an  amount  in  excess  of  the  value  of  one  thousand  dollars 
to  any  person  or  corporation  other  than  those  enumerated  in  paragraph  ono 
of  this  section,  the  tax  shall  be  at  the  rate  of 

Five  per  centum  on  any  amount  in  excess  of  one  thousand  dollars  up  to 
the  sum  of  fifty  thousand  dollars. 

Six  per  centum  on  any  amount  in  excess  of  fifty  thousand  dollars  up  to 
the  sum  of  two  hundred  and  fifty  thousand  dollars. 

Seven  per  centum  on  any  amount  in  excess  of  two  hundred  and  fifty  thou- 
sand dollars  up  to  the  sum  of  one  million  dollars. 

Eight  per  centum  on  any  amount  in  excess  of  one  million  dollars.  (Laws 
1911,  p.  1960.) 

§  933.    Accrual  and  Payment  of  Tax. 

Sec.  (232.)  All  taxes  imposed  by  this  article  shall  be  due  and  payable 
at  the  time  of  the  transfer,  except  as  herein  otherwise  provided.  Taxes  upon 
the  transfer  of  any  estate,  property  or  interest  therein  limited,  conditioned, 
dependent  or  determinable  upon  the  happening  of  any  contingency  or  future 
event  by  reason  of  which  the  fair  market  value  thereof  cannot  be  ascertained 
at  the  time  of  the  transfer  as  herein  provided,  shall  accrue  and  become  due 
and  payable  when  the  persons  or  corporations  beneficially  entitled  thereto 
shall  come  into  actual  possession  or  enjoyment  thereof.  Such  tax  shall  be 
paid  to  the  state  controller  in  a  county  in  which  the  office  of  appraiser  is 
salaried,  and  in  other  counties,  to  the  county  treasurer,  and  said  state  con- 
troller or  county  treasurer  shall  give,  and  every  executor,  administrator  or 
trustee  shall  take,  duplicate  receipts  from  him  of  such  payment  as  provided 
in  section  two  hundred  and  thirty-six.  (Tax  Laws  1909,  p.  126.) 


NEW  YORK  STATUTE.  615 

§  934.    Discount  and  Interest. 

Sec.  (233.)  If  such  tax  is  paid  within  six  months  from  the  accrual 
thereof,  a  discount  of  five  per  centum  shall  be  allowed  and  deducted  there- 
from. If  such  tax  is  not  paid  within  eighteen  months  from  the  accrual 
thereof,  interest  shall  be  charged  and  collected  thereon  at  the  rate  of  ten 
per  centum  per  annum  from  the  time  the  tax  accrued;  unless  by  reason  of 
claims  made  upon  the  estate,  necessary  litigation  or  other  unavoidable  cause 
of  delay,  such  tax  cannot  be  determined  and  paid  as  herein  provided,  in 
which  case  interest  at  the  rate  of  six  per  centum  per  annum  shall  be  charged 
upon  such  tax  from  the  accrual  thereof  until  the  cause  of  such  delay  is 
removed,  after  which  ten  per  centum  shall  be  charged.  (Tax  Laws  1909,  p. 
126.) 

§  935.    Collection  of  Tax  by  IJxecutor — Lien. 

Sec.  (234.)  Every  such  tax  shall  be  and  remain  a  lien  npon  the  property 
transferred  until  paid  and  the  person  to  whom  the  property  is  so  transferred, 
and  the  executors,  administrators  and  trustees  of  every  estate  so  transferred 
shall  be  personally  liable  for  such  tax  until  its  payment.  Every  executor, 
administrator  or  trustee  shall  have  full  power  to  sell  so  much  of  the  property 
of  the  decedent  as  will  enable  him  to  pay  such  tax  in  the  same  manner  as  he 
might  be  entitled  by  law  to  do  for  the  payment  of  the  debts  of  the  testator 
or  intestate.  Any  such  executor,  administrator  or  trustee  having  in  charge 
or  in  trust  any  legacy  or  property  for  distribution  subject  to  such  tax  shall 
deduct  the  tax  therefrom  and  shall  pay  over  the  same  to  the  state  controller 
or  county  treasurer,  as  herein  provided.  If  such  legacy  or  property  be  not 
in  money,  he  shall  collect  the  tax  thereon  upon  the  appraised  value  thereof 
from  the  person  entitled  thereto.  He  shall  not  deliver  or  be  compelled  to 
deliver  any  specific  legacy  or  property  subject  to  tax  under  this  article  to  any 
person  until  he  shall  have  collected  the  tax  thereon.  If  any  such  legacy  shall 
be  charged  upon  or  payable  out  of  real  property,  the  heir  or  devisee  shall 
deduct  such  tax  therefrom  and  pay  it  to  the  executor,  administrator  or  trustee, 
and  the  tax  shall  remain  a  lien  or  charge  on  such  real  property  until  paid; 
and  the  payment  thereof  shall  be  enforced  by  the  executor,  administrator  or 
trustee  in  the  same  manner  that  payment  of  the  legacy  might  be  enforced, 
or  by  the  district  attorney  under  section  two  hundred  and  thirty-five  (sec.  5) 
of  this  chapter.  If  any  such  legacy  shall  be  given  in  money  to  any  such  per- 
son for  a  limited  period,  the  executor,  administrator  or  trustee  shall  retain 
the  tax  upon  the  whole  amount,  but  if  it  be  not  in  money,  he  shall  make 
application  to  the  court  having  jurisdiction  of  an  accounting  by  him,  to  make 
an  apportionment,  if  the  case  require  it,  of  the  sum  to  be  paid  into  his  hands 
by  such  legatees,  and  for  such  further  order  relative  thereto  as  the  case  may 
require.  (Tax  Laws  1909,  p.  127.) 

§  936.     Refund   of   Tax   Erroneously   Paid. 

Sec.  (235.)  If  any  debts  shall  be  proven  against  the  estate  of  a  decedent 
after  the  payment  of  any  legacy  or  distributive  share  thereof,  from  which  any 
such  tax  has  been  deducted  or  upon  which  it  has  been  paid  by  the  person 
entitled  to  such  legacy  or  distributive  share,  and  such  person  is  required  by 


616  INHERITANCE  TAXATION. 

order  of  the  surrogate  having  jurisdiction,  on  notice  to  the  state  controller, 
to  refund  the  amount  of  such  debts  or  any  part  thereof,  an  equitable  propor- 
tion of  the  tax  shall  be  repaid  to  him  by  the  executor,  administrator  or 
trustee,  if  the  tax  has  not  been  paid  to  the  state  controller  or  county  treas- 
urer; or  if  such  tax  has  been  paid  to  such  state  controller  or  county  treasurer, 
such  officer  shall  refund  out  of  the  funds  in  his  hands  or  custody  to  the  credit 
of  such  taxes  such  equitable  proportion  of  the  tax,  and  credit  himself  with 
the  same  in  the  account  required  to  be  rendered  by  him  under  this  article. 
If  after  the  payment  of  any  tax  in  pursuance  of  an  order  fixing  such  tax, 
made  by  the  surrogate  having  jurisdiction,  such  order  be  modified  or  reversed 
by  the  surrogate  having  jurisdiction  within  two  years  from  and  after  the  date 
of  entry  of  the  order  fixing  the  tax,  or  be  modified  or  reversed  at  any  time 
on  an  appeal  taken  therefrom  within  the  time  allowed  by  law  on  due  notice 
to  the  state  controller,  the  state  controller  shall,  if  such  tax  was  paid 
in  a  county  in  which  the  office  of  appraiser  is  salaried,  refund  to  the  executor, 
administrator,  trustee,  person  or  persons  by  whom  such  tax  was  paid,  the 
amount  of  any  moneys  paid  or  deposited  on  account  of  such  tax  in  excess  of 
the  amount  of  the  tax  fixed  by  the  order  modified  or  reversed,  out  of  the 
funds  in  his  hands  or  custody  to  the  credit  of  such  taxes,  and  to  credit  him- 
self with  the  same  in  the  account  required  to  be  rendered  by  him  under  this 
article,  or  if  paid  in  a  county  in  which  the  office  of  appraiser  is  not  salaried, 
he  shall  by  warrant  direct  and  allow  the  county  treasurer  of  the  county  to 
refund  such  amount  in  the  same  manner;  but  no  application  for  such  refund 
shall  be  made  after  one  year  from  such  reversal  or  modification,  unless  an 
appeal  shall  be  taken  therefrom,  in  which  case  no  such  application  shall  be 
made  after  one  year  from  the  final  determination  on  such  appeal  or  of  an 
appeal  taken  therefrom,  and  the  representatives  of  the  estate,  legatees,  devisees 
or  distributees  entitled  to  any  refund  under  this  section  shall  not  be  entitled 
to  any  interest  upon  such  refund,  and  the  state  controller  shall  deduct  from 
the  fees  allowed  by  this  article  to  the  county  treasurer  the  amount  theretofore 
allowed  him  upon  such  overpayment.  Where  it  shall  be  proved  to  the  satis- 
faction of  the  surrogate  that  deductions  for  debts  were  allowed  upon  the 
appraisal,  since  proved  to  have  been  erroneously  allowed,  it  shall  be  lawful 
for  such  surrogate  to  enter  an  order  assessing  the  tax  upon  the  amount  wrong- 
fully or  erroneously  deducted.  This  section,  as  amended,  shall  apply  to  ap- 
peals and  proceedings  now  pending  and  taxes  heretofore  paid  in  relation  to 
which  the  period  of  one  year  from  such  reversal  or  modification  has  not  ex- 
pired when  this  section,  as  amended,  takes  effect.  This  act  shall  take  effect 
immediately.  (Tax  Laws  1909,  p,  128;  Laws  1911,  p.  723.) 

§  937.    Devises  and  Bequests  in  Lieu  of  Commissions. 

Sec.  (236.)  If  a  testator  bequeaths  or  devises  property  to  one  or  more 
executors  or  trustees  in  lieu  of  their  commissions  or  allowances,  or  makes 
them  his  legatees  to  an  amount  exceeding  the  commissions  or  allowances 
prescribed  by  law  for  an  executor  or  trustee,  the  excess  in  value  of  the  prop- 
erty so  bequeathed  or  devised  above  the  amount  of  commissions  or  allow- 
ances prescribed  by  law  in  similar  cases  shall  be  taxable  under  this  article. 
(Tax  Laws  1909,  p.  129.) 


NEW  YORK  STATUTE.  617 

§  938.    Liability  of  Certain  Corporations  to  Tax. 

Sec.  (237.)  If  a  foreign  executor,  administrator  or  trustee  shall  assign  or 
transfer  any  stock  or  obligations  in  this  state  standing  in  the  name  of  a 
decedent,  or  in  trust  for  a  decedent,  liable  to  any  such  tax,  the  tax  shall  be 
paid  to  the  state  controller  or  the  treasurer  of  the  proper  county  on  the 
transfer  thereof.  No  safe  deposit  company,  trust  company,  corporation,  bank 
or  other  institution,  person  or  persons  having  in  possession  or  under  control 
securities,  deposits,  or  other  assets  belonging  to  or  standing  in  the  name  of  a 
decedent  who  was  a  resident  or  nonresident,  or  belonging  to,  or  standing  in 
the  joint  names  of  such  decedent  and  one  or  more  persons,  including  the 
shares  of  the  capital  stock  of,  or  other  interests  in,  the  safe  deposit  com- 
pany, trust  company,  corporation,  bank  or  other  institution  making  the  deliv- 
ery or  transfer  herein  provided,  shall  deliver  or  transfer  the  same  to  the 
executors,  administrators  or  legal  representatives  of  said  decedent,  or  to  the 
survivor  or  survivors  when  held  in  the  joint  names  of  a  decedent  and  one  or 
more  persons,  or  upon  their  order  or  request,  unless  notice  of  the  time  and 
place  of  such  intended)  delivery  or  transfer  be  served  upon  the  state  con- 
troller at  least  ten  days  prior  to  said  delivery  or  transfer;  nor  shall  any 
such  safe  deposit  company,  trust  company,  corporation,  bank  or  other  institu- 
tion, person  or  persons  deliver  or  transfer  any  securities,  deposits  or  other 
assets  belonging  to  or  standing  in  the  name  of  a  decedent,  or  belonging  to,  or 
standing  in  the  joint  names  of  a  decedent  and  one  or  more  persons,  including 
the  shares  of  the  capital  stock  of,  or  other  interests  in,  the  safe  deposit  com- 
pany, trust  company,  corporation,  bank  or  other  institution  making  the  delivery 
or  transfer,  without  retaining  a  sufficient  portion  or  amount  thereof  to  pay  any 
tax  and  interest  which  may  thereafter  be  assessed  on  account  of  the  delivery  or 
transfer  of  such  securities,  deposits  or  other  assets,  including  the  shares  of  the 
capital  stock  of,  or  other  interests  in,  the  safe  deposit  company,  trust  com- 
pany, corporation,  bank  or  other  institution,  making  the  delivery  or  transfer, 
under  the  provisions  of  this  article,  unless  the  state  controller  consents 
thereto  in  writing.  And  it  shall  be  lawful  for  the  said  state  controller, 
personally  or  by  representative,  to  examine  said  securities,  deposits  or  assets 
at  the  time  of  such  delivery  or  transfer.  Failure  to  serve  such  notice  or  failure 
to  allow  such  examination  or  failure  to  retain  a  sufficient  portion  or  amount 
to  pay  such  tax  and  interest  as  herein  provided  shall  render  said  safe  deposit 
company,  trust  company,  corporation,  bank  or  other  institution,  person  or 
persons  liable  to  the  payment  of  the  amount  of  the  tax  and  interest  due 
or  thereafter  to  become  due  upon  said  securities,  deposits  or  other  assets, 
including  the  shares  of  the  capital  stock  of,  or  other  interests  in,  the  safe 
deposit  company,  trust  company,  corporation,  bank  or  other  institution  making 
the  delivery  or  transfer,  and  in  addition  thereto,  a  penalty  of  not  less  than 
five  or  more  than  twenty-five  thousand  dollars;  and  the  payment  of  such 
tax  and  interest  thereon,  or  of  the  penalty  above  prescribed,  or  both,  may 
be  enforced  in  an  action  brought  by  the  state  controller  in  any  court  of 
competent  jurisdiction.  (Tax  Laws  1909,  p.  129.) 

§  939.    Jurisdiction   of  the   Surrogate. 

Sec.  (238.)  The  surrogate's  court  of  every  county  of  the  state  having 
jurisdiction  to  grant  letters  testamentary  or  of  administration  upon  the  estate 


618  INHERITANCE  TAXATION. 

of  a  decedent  whose  property  is  chargeable  with  any  tax  under  this  article, 
or  to  appoint  a  trustee  of  such  estate  or  any  part  thereof,  or  to  give  ancillary 
letters  thereon,  shall  have  jurisdiction  to  hear  and  determine  all  questions 
arising  under  the  provisions  of  this  article,  and  to  do  any  act  in  relation 
thereto  authorized  by  law  to  be  done  by  a  surrogate  in  other  matters  or 
proceedings  coming  within  his  jurisdiction;  and  if  two  or  more  surrogates' 
courts  shall  be  entitled  to  exercise  any  such  jurisdiction,  the  surrogate  first 
acquiring  jurisdiction  hereunder  shall  retain  the  same  to  the  exclusion  of 
every  other  surrogate.  Every  petition  for  ancillary  letters  testamentary  or 
ancillary  letters  of  administration  made  in  pursuance  of  the  provisions  of 
article  seven,  title  three,  chapter  eighteen  of  the  Code  of  Civil  Procedure  shall 
set  forth  the  name  of  the  state  controller  as  a  person  to  be  cited  as  therein 
prescribed,  and  a  true  and  correct  statement  of  all  the  decedent's  property 
in  this  state  and  the  value  thereof;  and  upon  the  presentation  thereof  the 
surrogate  shall  issue  a  citation  directed  to  the  state  controller;  and  upon 
the  return  of  the  citation  the  surrogate  shall  determine  the  amount  of  the 
tax  which  may  be  or  become  due  under  the  provisions  of  this  article  and 
his  decree  awarding  the  letters  may  contain  any  provision  for  the  payment  of 
such  tax  or  the  giving  of  security  therefor  which  might  be  made  by  such 
surrogate  if  the  state  controller  were  a  creditor  of  the  decedent.  (Tax 
Laws  1909,  p.  130.) 

§  940.    Appointment  of  Appraisers,  Stenographers  and  Clerks. 

Sec.  (239.)  The  state  controller  shall  appoint  and  may  at  pleasure 
remove  not  to  exceed  six  persons  in  the  county  of  New  York,  four  persons 
in  the  county  of  Kings,  and  one  person  in  the  counties  of  Albany,  Dutchess, 
Erie,  Monroe,  Nassau,  Niagara,  Oneida,  Onondaga,  Orange,  Queens,  Bensselaer, 
Richmond,  Suffolk  and  Westchester,  to  act  as  appraisers  therein.  The  state 
controller,  from  time  to  time  and  whenever  in  his  opinion  it  is  necessary, 
may  also  appoint  and  at  pleasure  remove  not  to  exceed  two  additional  persons 
to  act  as  transfer  tax  appraisers  in  the  county  of  New  York,  to  whom  shall 
be  referred  the  appraisal  of  delinquent  estates  pending  before  the  transfer 
appraisers  in  New  York  county,  where  more  than  eighteen  months  have 
elapsed  since  the  death  of  such  decedents,  respectively,  and  also  to  act  as 
appraiser  of  other  estates  whenever  it  shall  appear  to  the  controller  that 
the  services  of  such  additional  appraiser  is  necessary.  The  appraiser  so 
appointed  shall  receive  an  annual  salary  to  be  fixed  by  the  state  controller, 
together  with  their  actual  and  necessary  traveling  expenses  and  witness  fees, 
as  hereinafter  provided,  payable  monthly  by  the  state  controller  out  of 
any  funds  in  his  hands  or  custody  on  account  of  transfer  tax.  The  salaries 
of  each  of  the  appraisers  so  appointed  shall  not  exceed  the  following  amounts: 
In  New  York  county,  four  thousand  dollars;  in  Kings  county,  four  thousand 
dollars;  in  Erie  and  Queens  counties,  three  thousand  dollars;  in  Westchester 
and  Albany  counties,  three  thousand  dollars;  in  .Nassau  county,  two  thousand 
dollars;  in  Monroe  and  Onondaga  counties,  one  thousand  five  hundred  dol- 
lars; in  Dutchess,  Niagara,  Oneida,  Orange,  Rensselaer,  Richmond  and  Suffolk 
counties,  one  thousand  dollars.  Each  of  the  said  appraisers  shall  file  with 
the  state  controller  his  oath  of  office,  and  his  official  bond  in  the  penal 


NEW  YORK  STATUTE.  619 

sum  of  not  less  than  one  thousand  dollars,  in  the  discretion  of  the  state 
controller,  conditioned  for  the  faithful  performance  of  his  duties  as  such 
appraiser,  which  bond  shall  be  approved  by  the  attorney  general  and  the 
state  controller.  The  state  controller  shall  retain  out  of  any  funds  in 
his  hands  on  account  of  said  tax  the  following  amounts:  First,  a  sum  sufficient 
to  provide  the  appraisers  of  New  York  county  with  nine  stenographers,  three 
clerks,  one  examiner  of  values,  and  one  assistant  examiner  of  values,  and  the 
appraisers  of  Kings  county  with  four  stenographers,  whose  salaries  shall  not 
exceed  two  thousand  dollars  a  year  each ;  also  the  appraisers  of  Kings  county 
with  one  junior  clerk,  whose  salary  shall  not  exceed  six  hundred  dollars  a 
year;  one  page,  whose  salary  shall  not  exceed  four  hundred  and  eighty 
dollars  a  year,  and  the  appraiser  of  Erie  county  with  one  clerk,  whose  salary 
shall  not  exceed  fifteen  hundred  dollars  a  year,  and  the  appraiser  of  West- 
chester  county  with  one  clerk,  whose  salary  shall  not  exceed  the  sum  of  twelve 
hundred  dollars  a  year,  and  the  appraiser  of  Queen  county  with  one  clerk, 
whose  salary  shall  not  exceed  the  sum  of  twelve  hundred  dollars  a  year, 
such  employees  to  be  appointed  by  the  state  controller.  The  state  con- 
troller shall  also  retain  out  of  any  funds  in  his  hands  on  account  of  said 
tax  a  sum  sufficient  to  provide  each  of  the  additional  transfer  tax  appraisers 
in  New  York  county,  whenever  appointed  as  hereinbefore  provided,  with  a 
stenographer,  whose  salary  shall  not  exceed  the  rate  of  two  thousand  dollars 
a  year  each,  such  employees  to  be  appointed  by  the  state  controller.  Second, 
a  sum  to  be  used  in  defraying  the  expenses  for  office  rent,  stationery,  postage, 
process  serving  and  other  similar  expenses  necessarily  incurred  in  the  ap- 
praisal of  estates,  not  exceeding  ten  thousand  five  hundred  dollars  a  year  in 
New  York  county  and  five  thousand  dollars  a  year  in  Kings  county.  Third, 
a  sum  not  exceeding  ten  thousand  dollars  to  be  used  in  defraying  the  expenses 
for  extra  clerical  and  stenographic  services  in  the  transfer  tax  bureau  of  the 
controller's  office  at  Albany,  during  the  period  ending  September  thirtieth, 
nineteen  hundred  and  eleven.  This  act  shall  take,  effect  immediately.  (Tax 
Laws  1909,  p.  131;  Laws  1911,  p.  2124.) 

§  941.    Proceedings   by   Appraiser. 

Sec.  (240.)  In  each  county  in  which  the  office  of  appraiser  is  not  salaried 
the  county  treasurer  shall  act  as  appraiser.  The  surrogate,  either  upon  his 
own  motion,  or  upon  the  application  of  any  interested  person,  including  the 
state  controller,  shall  by  order  direct  the  person  or  one  of  the  persons  ap- 
pointed pursuant  to  section  two  hundred  and  twenty-nine  (sec.  10)  of  this 
article  in  counties  in  which  the  office  of  appraiser  is  salaried,  and  in  other 
counties,  the  county  treasurer,  to  fix  the  fair  market  value  of  property  of 
persons  whose  estates  shall  be  subject  to  the  payment  of  any  tax  imposed 
by  this  article. 

Every  such  appraiser  shall  forthwith  give  notice  by  mail  to  all  persons 
known  to  have  a  claim  or  interest  in  the  property  to  be  appraised,  including 
the  state  controller,  and  to  such  persons  as  the  surrogate  may  by  order 
direct,  of  the  time  and  place  when  he  will  appraise  such  property.  He  shall 
at  such  time  and  place  appraise  the  same  at  its  fair  market  value  as  herein 
prescribed;  and  for  that  purpose  the  said  appraiser  is  authorized  to  issue 


620  INHERITANCE   TAXATION. 

subpoenas  and  to  compel  the  attendance  of  witnesses  before  him  and  to  take 
the  evidence  of  such  witnesses  under  oath  concerning  such  property  and  the 
value  thereof;  and  he  shall  make  report  thereof  and  of  such  value  in  writing, 
to  the  said  surrogate,  together  with  the  depositions  of  the  witnesses  exam- 
ined, and  such  other  facts  in  relation  thereto  and  to  said  matter  as  the 
surrogate  may  order  or  require.  Every  appraiser,  except  in  the  counties  in 
which  the  office  of  appraiser  is  salaried,  for  which  provision  is  hereinbefore 
made,  shall  be  paid  by  the  state  controller  and  after  the  audit  of  said 
state  controller,  his  actual  and  necessary  traveling  expenses  and  the  fees 
paid  such  witnesses,  which  fees  shall  be  the  same  as  those  now  paid  to 
witnesses  subpoenaed  to  attend  in  courts  of  record,  payment  to  be  made  out 
of  funds  in  the  hands  of  the  county  treasurer  of  the  proper  county  on 
account  of  the  tax  imposed  under  the  provisions  of  this  article. 

The  value  of  every  future  or  limited  estate,  income,  interest  or  annuity 
dependent  upon  any  life  or  lives  in  being,  shall  be  determined  by  the  rule, 
method  and  standard  of  mortality  and  value  employed  by  the  superintendent 
of  insurance  in  ascertaining  the  value  of  policies  of  life  insurance  and  annu- 
ities for  the  determination  of  liabilities  of  life  insurance  companies,  except 
that  the  rate  of  interest  for  making  such  computation  shall  be  five  per 
centum  per  annum. 

In  estimating  the  value  of  any  estate  or  interest  in  property,  to  the  bene- 
ficial enjoyment  or  possession  whereof  there  are  persons  or  corporations  pres- 
ently entitled  thereto,  no  allowance  shall  be  made  on  account  of  any  contingent 
encumbrance  thereon,  nor  on  account  of  any  contingency  upon  the  happening 
of  which  the  estate  or  property  or  some  part  thereof  or  interest  therein  might 
be  abridged,  defeated  or  diminished;  provided,  however,  that  in  the  event  of 
such  encumbrance  taking  effect  as  an  actual  burden  upon  the  interest  of  the 
beneficiary,  or  in  the  event  of  the  abridgment,  defeat  or  diminution  of  said 
estate  or  property  or  interest  therein  as  aforesaid,  a  return  shall  be  made 
to  the  person  properly  entitled  thereto  of  a  proportionate  amount  of  such 
tax  on  account  of  the  encumbrance  when  taking  effect,  or  so  much  as  will 
reduce  the  same  to  the  amount  which  would  have  been  assessed  on  account 
of  the  actual  duration  or  extent  of  the  estate  or  interest  enjoyed.  Such  return 
of  tax  shall  be  made  in  the  manner  provided  by  section  two  hundred  and 
twenty-five  (sec.  6)  of  this  article. 

Where  any  property  shall,  after  the  passage  of  this  chapter,  be  transferred 
subject  to  any  charge,  estate  or  interest,  determinable  by  the  death  of  any 
person,  or  at  any  period  ascertainable  only  by  reference  to  death,  the  in- 
crease accruing  to  any  person  or  corporation  upon  the  extinction  or  determina- 
tion of  such  charge,  estate  or  interest,  shall  be  deemed  a  transfer  of  property 
taxable  under  the  provisions  of  this  article  in  the  same  manner  as  though 
the  person  or  corporation  beneficially  entitled  thereto  had  then  acquired  such 
increase  from  the  person  from  whom  the  title  to  their  respective  estates  or 
interests  is  derived. 

When  property  is  transferred  in  trust  or  otherwise,  and  the  rights,  interest 
or  estates  of  the  transferees  are  dependent  upon  contingencies  or  conditions 
whereby  they  may  be  wholly  or  in  part  created,  defeated,  extended  or  abridged, 
a  tax  shall  be  imposed  upon  said  transfer  at  the  highest  rate  which,  on  the 


NEW  YORK  STATUTE.  621 

happening  of  any  of  the  said  contingencies  or  conditions,  would  be  possible 
under  the  provisions  of  this  article,  and  such  tax  so  imposed  shall  be  due  and 
payable  forthwith  by  the  executors  or  trustees  out  of  the  property  transferred, 
and  the  surrogate  shall  enter  a  temporary  order  determining  the  amount  of 
said  tax  in  accordance  with  this  provision;  provided  however,  that  on  the 
happening  of  any  contingency  whereby  the  said  property,  or  any  part  thereof, 
is  transferred  to  a  person  or  corporation  exempt  from  taxation  under  the 
provisions  of  this  article,  or  to  any  person  taxable  at  a  rate  less  than  the 
rate  imposed  and  paid,  such  person  or  corporation  shall  be  entitled  to  a 
return  of  so  much  of  the  tax  imposed  and  paid  as  is  the  difference  between 
the  amount  paid  and  the  amount  which  said  person  or  corporation  should  pay 
under  the  provisions  of  this  article;  and  the  executor  or  trustee  of  each 
estate,  or  the  legal  representative  having  charge  of  the  trust  fund,  shall 
immediately  upon  the  happening  of  said  contingencies  or  conditions  apply 
to  the  surrogate  of  the  proper  county,  upon  a  verified  petition  setting  forth 
all  the  facts,  and  giving  at  least  ten  days'  notice  by  mail  to  all  interested 
persons  or  corporations,  for  an  order  modifying  the  temporary  taxing  order 
of  said  surrogate  so  as  to  provide  for  the  final  assessment  and  determination 
of  the  tax  in  accordance  with  the  ultimate  transfer  or  devolution  of  said 
property.  Such  return  of  overpayment  shall  be  made  in  the  manner  provided 
by  section  two  hundred  and  twenty-five  (sec.  6)  of  this  article. 

Estates  in  expectancy  which  are  contingent  or  defeasible  and  in  which  pro- 
ceedings for  the  determination  of  the  tax  have  not  been  taken  or  where 
the  taxation  thereof  has  been  held  in  abeyance,  shall  be  appraised  at  their 
full,  undiminished  value  when  the  persons  entitled  thereto  shall  come  into 
the  beneficial  enjoyment  or  possession  thereof,  without  diminution  for  or  on 
account  of  any  valuation  theretofore  made  of  the  particular  estates  for 
purposes  of  taxation,  upon  which  said  estates  in  expectancy  may  have  been 
limited. 

Where  an  estate  for  life  or  for  years  can  be  devested  by  the  act  or  omis- 
sion of  the  legatee  or  devisee  it  shall  be  taxed  as  if  there  were  no  possibility 
of  such  devesting. 

The  report  of  the  appraiser  shall  be  made  in  duplicate,  one  of  which 
duplicates  shall  be  filed  in  the  office  of  the  surrogate  and  the  other  in  the 
office  of  the  state  controller.  (Tax  Laws  1909,  p.  132;  Laws  1911,  p.  2113.) 

§  942.    Determination  of  Surrogate. 

Sec.  (241.)  From  such  report  of  appraisal  and  other  proof  relating  to  any 
such  estate  before  the  surrogate,  the  surrogate  shall  forthwith,  as  of  course, 
determine  the  cash  value  of  all  estates  and  the  amount  of  tax  to  which  the 
same  are  liable;  or  the  surrogate  may  so  determine  the  cash  value  of  all 
such  estates  and  the  amount  of  tax  to  which  the  same  are  liable,  without 
appointing  an  appraiser. 

The  superintendent  of  insurance  shall,  on  the  application  of  any  surrogate, 
determine  the  value  of  any  such  future  or  contingent  estates,  income  or  in- 
terest therein  limited,  contingent,  dependent  or  determinable  upon  the  life 
or  lives  of  persons  in  being,  upon  the  facts  contained  in  any  such  appraiser's 


622  INHERITANCE   TAXATION. 

report,  and  certify  the  same  to  the  surrogate,  and  his  certificate  shall  be  con- 
clusive evidence  that  the  method  of  computation  adopted  therein  is  correct. 

The  surrogate  shall  immediately  give  notice,  upon  the  determination  by  him 
as  to  the  value  of  any  estate  which  is  taxable  under  this  article,  and  of  the 
tax  to  which  it  is  liable,  to  all  persons  known  to  be  interested  therein,  and 
shall  immediately  forward  a  copy  of  such  taxing  order  to  the  state  con- 
troller. The  surrogate  shall  also  forward  to  the  state  controller  copies  of 
all  orders  entered  by  him  in  relation  to  or  affecting  in  any  way  the  transfer 
tax  on  any  estate,  including  orders  of  exemption. 

If,  however,  it  appears  at  any  stage  of  the  proceedings  that  any  of  such 
persons  known  to  be  interested  in  the  estate  is  an  infant  or  an  incompetent, 
the  surrogate  may,  if  the  interest  of  such  infant  or  incompetent  is  presently 
involved  and  is  adverse  to  that  of  any  of  the  other  persons  interested  therein, 
appoint  a  special  guardian  of  such  infant;  but  nothing  in  this  provision  shall 
affect  the  right  of  an  infant  over  fourteen  years  of  age  or  of  anyone  on 
behalf  of  an  infant  under  fourteen  years  of  age  to  nominate  and  apply  for 
the  appointment  of  a  special  guardian  for  such  infant  at  any  stage  of  the 
proceedings.  (Tax  Laws  1909,  p.  135.) 

§  943.    Appeal  and  Other  Proceedings. 

Sec.  (242.)  The  state  controller  or  any  person  dissatisfied  with  the 
appraisement  or  assessment  and  determination  of  tax  may  appeal  therefrom 
to  the  surrogate  within  sixty  days  from  the  fixing,  assessing  and  determi- 
nation of  tax  by  the  surrogate  as  herein  provided,  upon  filing  in  the  office 
of  the  surrogate  a  written  notice  of  appeal,  which  shall  state  the  grounds  upon 
which  the  appeal  is  taken;  but  no  costs  shall  be  allowed  by  the  surrogate  on 
such  appeal. 

Within  two  years  after  the  entry  of  an  order  or  decree  of  a  surrogate 
determining  the  value  of  an  estate  and  assessing  the  tax  thereon,  the  state 
controller  may,  if  he  believes  that  such  appraisal,  assessment  or  determi- 
nation has  been  fraudulently,  collusively  or  erroneously  made,  make  appli- 
cation to  a  justice  of  the  supreme  court  of  the  judicial -district  embracing 
the  surrogate's  court  in  which  the  order  or  decree  has  been  filed,  for  a  re- 
appraisal thereof.  The  justice  to  whom  such  application  is  made  may  there- 
upon appoint  a  competent  person  to  reappraise  such  estate.  Such  appraiser 
shall  possess  the  powers  and  be  subject  to  the  duties  of  an  appraiser  under 
section  two  hundred  and  thirty  (sec.  11)  and  shall  receive  compensation  at 
the  rate  of  five  dollars  per  day  for  every  day  actually  and  necessarily  em- 
ployed in  such  appraisal.  Such  compensation  shall  be  payable  by  the  state 
controller  or  county  treasurer  out  of  any  funds  he  may  have  on  account 
of  any  tax  imposed  under  the  provisions  of  this  article,  upon  the  certificate 
of  the  justice  appointing  him.  The  report  of  such  appraiser  shall  be  filed 
with  the  justice  by  whom  he  was  appointed,  and  thereafter  the  same  pro- 
ceedings shall  be  taken  and  had  by  and  before  such  justice  as  are  herein 
provided  to  be  taken  and  had  by  and  before  the  surrogate.  The  determina- 
tion and  assessment  of  such  justice  shall  supersede  the  determination  and 
assessment  of  the  surrogate,  and  shall  be  filed  by  such  justice  in  the  office 


NEW  YORK  STATUTE.  623 

of    the    state    controller,    and    a    certified    copy    thereof    transmitted    to    the 
surrogate's  court  of  the  proper  county.     (Tax  Laws  1909,  p.  136.) 

§  944.    Composition  of  Transfer  Tax  upon  Certain  Estates. 

Sec.  (243.)  The  state  controller,  by  and  with  the  consent  of  the  attor- 
ney general  expressed  in  writing,  is  hereby  empowered  and  authorized  to 
enter  into  an  agreement  with  the  trustees  of  any  estate  in  which  remainders 
or  expectant  estates  have  been  of  such  a  nature,  or  so  disposed  and  circum- 
stanced, that  the  taxes  therein  were  held  not  presently  payable,  or  where 
the  interests  of  the  legatees  or  devisees  were  not  ascertainable  under  the  pro- 
visions of  chapter  four  hundred  and  eighty-three  of  the  laws  of  eighteen 
hundred  and  eighty-five;  chapter  three  hundred  and  ninety-nine  of  the  laws 
of  eighteen  hundred  and  ninety-two,  or  chapter  nine  hundred  and  eight  of 
the  laws  of  eighteen  hundred  and  ninety-six;  and  the  several  acts  amenda- 
tory thereof  and  supplemental  thereto;  and  to  compound  such  taxes  upon 
such  terms  as  may  be  deemed  equitable  and  expedient;  and  to  grant  dis- 
charge to  said  trustees  upon  the  payment  of  the  taxes  provided  for  in  such 
composition,  provided,  however,  that  no  such  composition  shall  be  conclu- 
sive in  favor  of  said  trustees  as  against  the  interest  of  such  cestuis  que 
trust  as  may  possess  either  present  rights  of  enjoyment,  or  fixed,  absolute 
or  indefeasible  rights  of  future  enjoyment,  or  of  such  as  would  possess 
such  rights  in  the  event  of  the  immediate  termination  of  particular  estates, 
unless  they  consent  thereto,  either  personally,  when  competent,  or  by 
guardian  or  committee.  Composition  or  settlement  made  or  effected  under 
the  provisions  of  this  section  shall  be  executed  in  triplicate,  and  one  copy 
filed  in  the  office  of  the  state  controller,  one  copy  in  the  office  of  the  sur- 
rogate of  the  county  in  which  the  tax  was  paid,  and  one  copy  delivered  to 
the  executors,  administrators  or  trustees  who  shall  be  parties  thereto.  (Tax 
Laws  1909,  p.  137.) 

§  945.     Surrogates'  Assistants  in  New  York,  Kings  and  Other  Counties. 

Sec.  (244.)  The  state  controller  may,  upon  the  recommendation  of  the 
surrogate,  appoint,  and  may  at  pleasure  remove,  assistants  and  clerks  in 
the  surrogate's  offices  of  the  following  counties,  at  annual  salaries  to  be 
fixed  by  him  not  to  exceed  the  amounts  hereinafter  specified: 

In  New  York  county,  a  transfer  tax  assistant,  five  thousand  dollars;  a 
transfer  tax  clerk,  two  thousand  four  hundred  dollars;  an  assistant  clerk, 
eighteen  hundred  dollars;  a  recording  clerk,  thirteen  hundred  dollars;  a 
stenographer,  eight  hundred  dollars;  and  shall  be  entitled  to  expend  not  more 
than  seven  hundred  and  fifty  dollars  a  year  in  such  office  for  expenses  neces- 
sarily incurred  in  the  assessment  and  collection  of  taxes  under  this  article. 

In  Kings  county,  a  transfer  tax  assistant,  four  thousand  dollars;  a  trans- 
fer tax  clerk,  two  thousand  dollars;  an  assistant  clerk,  fifteen  hundred  dol- 
lars; and  shall  be  entitled  to  expend  not  more  than  five  hundred  dollars  a 
year  for  expenses  necessarily  incurred  in  the  assessment  and  collection  of 
taxes  under  this  article. 

In  Erie  county,  a  transfer  tax  clerk,  eighteen  hundred  dollars. 


624  INHERITANCE   TAXATION. 

In  Westchester  county,  a  transfer  tax  assistant,  two  thousand  five  hun- 
dred dollars. 

In  Albany  county,  a  transfer  tax  clerk,  one  thousand  dollars. 

In  Queens  county,  a  transfer  tax  clerk,  fifteen  hundred  dollars. 

In  Onondaga  county,  a  transfer  tax  clerk,  twelve  hundred  dollars. 

In  Monroe  county,  two  transfer  tax  clerks,  seven  hundred  and  fifty  dol- 
lars each;  and  shall  be  entitled  to  expend  not  more  than  two  hundred 
dollars  a  year  for  expenses  necessarily  incurred  in  the  assessment  and  col- 
lection of  taxes  under  this  article. 

In  Dutchess  county,  a  transfer  tax  clerk,  nine  hundred  dollars. 

In  Oneida  county,  not  more  than  two  transfer  tax  clerks,  twelve  hundred 
dollars  in  the  aggregate.  , 

In  Suffolk  county,  a  transfer  tax  clerk,  one  thousand  dollars. 

In  Ulster  county,  a  transfer  tax  clerk,  seven  hundred  and  twenty  dollars. 

In  Eichmond  county,  a  transfer  tax  clerk,  one  thousand  dollars. 

In  Nassau  county,  a  transfer  tax  clerk,  twelve  hundred  dollars. 

Such  salaries  and  expenses  shall  be  paid  monthly  by  the  state  controller, 
upon  proper  vouchers,  out  of  any  funds  in  his  hands  on  account  of  taxes 
collected  under  this  article.  (Tax  Laws  1909,  p.  138;  Laws  1911,  pp.  1777, 
1979,  2531.) 

§  946.     Proceedings  by  District  Attorneys. 

Sec.  (245.)  If,  after  the  expiration  of  eighteen  months  from  the  accrual 
of  any  tax  under  this  article,  such  tax  shall  remain  due  and  unpaid,  after 
the  refusal  or  neglect  of  the  persons  liable  therefor  to  pay  the  same,  the 
state  controller  shall  notify  the  district  attorney  of  the  county,  in  writ- 
ing, of  such  failure  or  neglect,  and  such  district  attorney  shall  apply  to  the 
surrogate's  court  for  a  citation,  citing  the  persons  liable  to  pay  such  tax 
to  appear  before  the  court  on  the  day  specified,  not  more  than  three  months 
after  the  date  of  such  citation,  and  show  cause  why  the  tax  should  not  be 
paid.  The  surrogate,  upon  such  application,  and  whenever  it  shall  appear 
to  him  that  any  such  tax  accruing  under  this  article  has  not  been  paid 
as  required  by  law,  shall  issue  such  citation,  and  the  service  of  such  citation, 
and  the  time,  manner  and  proof  thereof,  and  the  hearing  and  determination 
thereon  and  the  enforcement  of  the  determination  or  order  made  by  the 
surrogate  shall  conform  to  the  provisions  of  the  code  of  civil  procedure 
for  the  service  of  citations  out  of  the  surrogate's  court,  and  the  hearing 
and  determination  thereon  and  its  enforcement  so  far  as  the  same  may  be 
applicable.  The  surrogate  or  his  clerk  shall,  upon  request  of  the  district 
attorney  or  the  state  controller,  furnish,  without  fee,  one  or  more 
transcripts  of  such  decree,  which  shall  be  docketed  and  filed  by  the  county 
clerk  of  any  county  of  the  state  without  fee,  in  the  same  manner  and 
with  the  same  effect  as  provided  by  law  for  filing  and  docketing  transcripts 
of  decrees  of  the  surrogate's  court.  The  costs  awarded  by  any  such  decree 
after  the  collection  and  payment  of  the  tax  to  the  state  controller  or 
county  treasurer  may  be  retained  by  the  district  attorney  for  his  own 
use.  Such  costs  shall  be  fixed  by  the  surrogate  in  his  discretion,  but  shall 
not  exceed  in  any  case  where  there  has  not  been  a  contest,  the  sum  of 
one  hundred  dollars,  or  where  there  has  been  a  contest,  the  sum  of  two 


NEW  YORK  STATUTE.  625 

hundred  and  fifty  dollars.  Whenever  the  surrogate  shall  certify  that 
there  was  probable  cause  for  issuing  a  citation  and  taking  the  proceed- 
ings specified  in  this  section,  the  state  controller,  after  the  same  shall 
have  been  audited  by  him,  shall  pay  all  expenses  incurred  for  the  service 
of  citations  and  other  lawful  disbursements  not  otherwise  paid,  from 
funds  in  his  hands  on  account  of  such  tax,  or  in  a  county  in  which  the 
office  of  appraiser  is  not  salaried,  by  a  warrant  upon  the  county  treasurer 
of  such  county  for  the  payment  by  him  of  the  same  from  funds  in  his 
hands  on  account  of  such  tax.  In  proceedings  to  which  the  state  con- 
troller is  cited  as  a  party  under  sections  two  hundred  and  twenty-eight 
(sec.  &)  and  two  hundred  and  thirty  (10)  of  this  article,  he  is  authorized 
to  designate  and  retain  counsel  to  represent  him  and  to  pay  the  expenses 
thereby  incurred  out  of  the  funds  which  may  be  in  his  hands  on  account 
of  this  tax  in  any  case  in  a  county  where  the  office  of  appraiser  is  salaried, 
and  in  any  other  county  the  state  controller  shall  by  warrant  direct 
the  county  treasurer  to  pay  such  expenses  out  of  any  funds  which  may 
be  in  his  hands  on  account  of  this  tax;  provided,  however,  that  in  the 
collection  of  taxes  upon  estates  of  nonresident  decedents  the  state  con- 
troller shall  not  allow  for  legal  services  up  to  and  including  the  entry  of 
the  order  of  the  surrogate  fixing  the  tax  a  sum  exceeding  ten  per  centum 
of  the  taxes  and  penalties  collected.  (Tax  Laws  1909,  p.  139.) 

§  947.    Receipts  from  County  Treasurer  or  Controller. 

Sec.  (246.)  One  of  the  duplicate  receipts  issued  for  the  payment  of 
any  tax  under  this  article,  as  provided  by  section  two  hundred  and  twenty- 
two  (sec.  3),  shall  be  countersigned  by  the  state  treasurer  if  the  same 
was  issued  by  the  state  controller,  and  by  the  state  controller  if  issued 
by  any  county  treasurer.  The  officer  so  countersigning  the  same  shall 
charge  the  officer  receiving  the  tax  with  the  amount  thereof  and  affix  the 
seal  of  his  office  to  the  same  and  return  to  the  proper  person;  but  no 
executor,  administrator  or  trustee  shall  be  entitled  to  a  final  accounting 
of  an  estate  in  settlement  of  which  a  tax  is  due  under  the  provisions  of 
this  article  unless  he  shall  produce  a  receipt  so  sealed  and  countersigned,  or 
a  certified  copy  thereof.  Any  person  shall,  upon  the  payment  of  fifty  cents 
to  the  officer  issuing  such  receipt,  be  entitled  to  a  duplicate  thereof,  to  be 
signed,  sealed  and  countersigned  in  the  same  manner  as  the  original. 

Any  person  shall,  upon  the  payment  of  fifty  cents,  be  entitled  to  a 
certificate  of  the  state  controller  that  the  tax  upon  the  transfer  of  any 
real  estate  of  which  any  decedent  died  seised  has  been  paid,  such  cer- 
tificate to  designate  the  real  property  upon  which  such  tax  is  paid,  the 
name  of  the  person  so  paying  the  same,  and  whether  in  full  of  su'ch  tax. 
Such  certificate  may  be  recorded  in  the  office  of  the  county  clerk  or 
register  of  the  county  where  such  real  property  is  situate,  in  a  book  to 
be  kept  by  him  for  that  purpose,  which  shall  be  labeled  "transfer  tax." 
(Tax  Laws  1909,  p.  141.) 

§  948.    Fees  of  County  Treasurer. 

Sec.  (247.)     The  treasurer  of  each  county  in  which  the  office  of  appraiser 
is  not  salaried  shall  be  allowed  to  retain,  on  all  taxes  paid  and  accounted 
40 


626  INHERITANCE  TAXATION. 

for  by  him  each  fiscar  year  under  this  article,  five  per  centum  on  the  first 
fifty  thousand  dollars,  two  and  one-half  per  centum  on  the  next  fifty 
thousand  dollars,  and  one  per  centum  on  all  additional  sums.  Such  fees 
shall  be  in  addition  to  the  salaries  and  fees  now  allowed  by  law  to  such 
officers.  (Tax  Laws  1909,  p.  141.) 

§  949.    Books  and  Forms  to  be  Furnished  by  the  State  Controller. 

Sec.  (248.)  The  state  controller  shall  furnish  to  each  surrogate  a 
book,  which  shall  be  a  public  record,  and  in  which  he  shall  enter  the  name 
of  every  decedent  upon  whose  estate  an  application  to  him  has  been  made 
for  the  issue  of  letters  of  administration,  or  letters  testamentary,  or  ancil- 
lary letters,  the  date  and  place  of  death  of  such  decedent,  the  estimated 
value  of  his  real  and  personal  property,  the  names,  place  of  residence  and 
relationship  to  him  of  his  heirs  at  law,  the  names  and  places  of  residence 
of  the  legatees  and  devisees  in  any  will  of  any  such  decedent,  the  amount 
of  each  legacy  and  the  estimated  value  of  any  real  property  devised  therein, 
and  to  whom  devised.  These  entries  shall  be  made  from  the  data  contained 
in  the  papers  filed  on  any  such  application,  or  in  any  proceeding  relating 
to  the  estate  of  the  decedent.  The  surrogate  shall  also  enter  in  such  book 
the  amount  of  the  personal  property  of  any  such  decedent,  as  shown  by 
the  inventory  thereof  when  made  and  filed  in  his  office,  and  the  returns 
made  by  any  appraiser  appointed  by  him  under  this  article,  and  the  value 
of  annuities,  life  estates,  terms  of  years,  and  other  property  of  any  such 
decedent  or  given  by  him  in  his  will  or  otherwise,  as  fixed  by  the  sur- 
rogate, and  the  tax  assessed  thereon,  and  the  amounts  of  any  receipts  for 
payment  of  any  tax  on  the  estate  of  such  decedent  under  this  article 
filed  with  him.  The  state  controller  shall  also  furnish  to  each  surrogate 
forms  for  the  reports  to  be  made  by  such  surrogate,  which  shall  correspond 
with  the  entries  to  be  made  in  such  book.  (Tax  Laws  1909,  p.  142.) 

§  950.     Reports  of  Surrogate  and  County  Clerk. 

Sec.  (249.)  Each  surrogate  shall,  on  January,  April,  July  and  October 
first  of  each  year,  make  a  report,  upon  the  forms  furnished  by  the  con- 
troller containing  all  the  data  and  matters  required  to  be  entered  in  such 
book,  which  shall  be  immediately  forwarded  to  the  state  controller.  The 
county  clerk  of  each  county,  except  in  the  counties  where  the  registers 
perform  the  duties  of  the  county  clerk  with  respect  to  the  recording  of 
deeds,  and  when  in  such  counties  the  registers,  shall,  at  the  same  time, 
make  reports  containing  a  statement  of  any  deed  or  other  conveyance  filed 
or  recorded  in  his  office,  of  any  property,  which  appears  to  have  been  made 
or  intended  to  take  effect  in  possession  or  enjoyment  after  the  death  of 
the  grantor  or  vendor,  with  the  name  and  place  of  residence  of  such 
grantor  or  vendor,  the  name  and  place  of  residence  of  the  grantee  or 
vendee,  and  a  description  of  the  property  transferred,  which  shall  be  im- 
mediately forwarded  to  the  state  controller.  (Tax  Laws  1909,  p.  142.) 

§  951.    Reports  of  County  Treasurer. 

Sec.  (250.)  Each  county  treasurer  in  a  county  in  which  the  office  of  ap- 
praiser is  not  salaried  shall  make  a  report,  under  oath,  to  the  state  con- 


NEW  YORK  STATUTE.  627 

troller,  on  January,  April,  July  and  October  first  of  each  year,  of  all  taxes 
received  by  him  under  this  article,  stating  for  what  estate  and  by  whom 
and  when  paid.  The  form  of  such  report  may  be  prescribed  by  the  state 
controller.  He  shall,  at  the  same  time,  pay  the  state  treasurer  all  taxes 
received  by  him  under  this  article  and  not  previously  paid  into  the  state 
treasury,  except  as  provided  in  the  next  section,  and  for  all  such  taxes 
collected  by  him  and  not  paid  into  the  state  treasury  within  thirty  days 
from  the  times  herein  required,  he  shall  pay  interest  at  the  rate  of  tea 
per  centum  per  annum.  (Tax  Laws  1&09,  p.  143;  Laws  1911,  p.  2116.) 

§  952.  Report  of  State  Controller — Payment  of  Tax — Refunds  in  Certain 
Cases. 

Sec.  (251.)  The  state  controller  shall  deposit  all  taxes  collected  by 
him  under  this  article,  except  as  hereinafter  otherwise  provided,  in  a 
responsible  bank,  banking-house  or  trust  company  in  the  city  of  Albany, 
which  shall  pay  the  highest  rate  of  interest  to  the  state  for  such  deposit, 
to  the  credit  of  the  state  controller  on  account  of  the  transfer  tax.  And 
every  such  bank,  banking-house  or  trust  company  shall  execute  and  file 
in  his  office  an  undertaking  to  the  state,  in  the  sum,  and  with  such  sureties, 
as  are  required  and  approved  by  the  controller,  for  the  safe  keeping  and 
prompt  payment  on  legal  demand  therefor  of  all  such  moneys  held  by  or 
on  deposit  in  such  bank,  banking-house  or  trust  company,  with  interest 
thereon  on  daily  balances  at  such  rate  as  the  controller  may  fix.  Every 
such  undertaking  shall  hare  indorsed  thereon,  or  annexed  thereto,  the  ap- 
proval of  the  attorney  general  as  to  its  form.  The  state  controller  shall 
on  the  first  day  of  each  month  make  a  verified  return  to  the  state  treasurer 
of  all  taxes  received  by  him  under  this  article,  stating  for  what  estate, 
and  by  whom  and  when  paid;  and  shall  credit  himself  with  all  expenditures 
made  since  his  last  previous  return  on  account  of  such  taxes,  for  salary, 
refunds  or  other  purposes  lawfully  chargeable  thereto.  He  shall  on  or 
before  the  tenth  day  of  each  month  pay  to  the  state  treasurer  the  balance 
of  such  taxes  remaining  in  his  hands  at  the  close  of  business  on  the  last 
day  of  the  previous  month,  as  appears  from  such  returns. 

Whenever  the  tax  on  a  contingent  remainder  has  been  determined  at  the 
highest  rate  which  on  the  happening  of  any  of  said  contingencies  or  condi- 
tions would  be  possible  under  the  provisions  of  this  article,  the  state 
controller,  in  the  counties  wherein  this  tax  is  payable  direct  to  him, 
and  in  all  other  counties  the  treasurer  of  said  counties,  respectively,  when 
such  tax  is  paid  shall  retain  and  hold  to  the  credit  of  said  estate  so  much  of 
the  tax  assessed  upon  such  contingent  remainders  as  represents  the  dif- 
ference between  the  tax  at  the  highest  rate  and  the  tax  upon  such  re- 
mainders which  would  be  due  if  the  contingencies  or  conditions  had  hap- 
pened at  the  date  of  the  appraisal  of  said  estate,  and  the  state  controller 
or  the  county  treasurer  shall  deposit  the  amount  of  tax  so  retained  in  some 
solvent  trust  company  or  trust  companies  or  savings  banks  in  this  state,  to 
the  credit  of  such  estate,  paying  the  interest  thereon  when  collected  by 
him  to  the  executor  or  trustee  of  said  estate,  to  be  applied  by  said 
executor  or  trustee  as  provided  by  the  decedent'g  will.  Upon  the  happen- 


629  INHERITANCE   TAXATION. 

ing  of  the  contingencies  or  conditions  whereby  the  remainder  ultimately 
vests  in  possession,  if  the  remainder  then  passes  to  persons  taxable  at  the 
highest  rate,  the  state  controller  or  the  county  treasurer  shall  turn  over 
the  amount  so  retained  by  him  to  the  state  treasurer  as  provided  herein 
and  by  section  two  hundred  and  forty  (sec.  21)  of  this  article,  or  if  the 
remainder  ultimately  vests  in  persons  taxable  at  a  lower  rate  or  a  person 
or  corporation  exempt  from  taxation  by  the  provisions  of  this  article, 
the  state  controller  or  the  county  treasurer  shall  refund  any  excess  of 
tax  so  held  by  him  to  the  executor  or  trustee  of  the  estate,  to  be  disposed 
of  by  said  executor  or  trustee  as  provided  by  the  decedent's  will.  Executors 
or  trustees  'of  any  estate  may  elect  to  assign  to  and  deposit  with  the  state 
controller  or  the  county  treasurer,  bonds  or  other  securities  of  the  estate 
approved  by  the  state  controller,  or  the  county  treasurer,  both  as  to  the 
form  of  the  collateral  and  the  amount  thereof,  for  the  purpose  of  securing 
the  payment  of  the  difference  between  the  tax  on  said  remainder  at  the 
highest  rate  and  the  tax  upon  said  remainder  which  would  be  due  if  the 
contingencies  or  conditions  had  happened  at  the  date  of  the  appraisal 
of  said  estate,  and  cash  for  the  balance  of  said  tax  as  assessed,  which  said 
bonds  or  other  securities  shall  be  held  by  the  state  controller,  or  the 
county  treasurer,  to  the  credit  of  said  estate  until  the  actual  vesting  of 
said  remainders,  the  income  therefrom  when  received  by  the  state  con- 
troller or  the  county  treasurer  to  be  paid  over  to  the  executor  or  trustee 
during  the  continuance  of  the  trust  estates  and  then,  to  be  finally  disposed 
of  in  accordance  with  the  ultimate  transfer  or  devolution  of  said  remainders 
as  hereinbefore  provided;  and  it  shall  be  the  duty  of  the  executors  or 
trustees  of  snch  estates  to  forthwith  notify  the  state  controller  of  the 
actual  vesting  of  all  such  contingent  remainders. 

If  any  executor  or  trustee  shall  have  deposited  with  the  state  con- 
troller, or  the  county  treasurer,  cash  securities,  or  both  cash  and  securities, 
to  an  amount  in  excess  of  the  sum  necessary  to  pay  the  transfer  tax  upon 
such  contingent  remainders  at  the  highest  rate  as  aforesaid,  the  excess  of 
tax  so  deposited  shall  be  returned  to  the  executor  or  trustee,  or  if  any 
executor  or  trustee  shall  have  deposited  with  the  state  controller,  or 
the  county  treasurer,  cash  or  securities,  or  both  cash  and  securities,  to  an 
amount  less  than  is  sufficient  to  pay  the  tax  upon  such  contingent  re- 
mainders as  finally  assessed  and  determined,  the  executor  or  trustee  of 
said  estate  shall  forthwith,  upon  the  entry  of  the  order  determining  the 
correct  amount  of  tax  due,  pay  to  the  state  controller,  or  the  county 
treasurer,  whichever  is  entitled  under  the  provisions  of  this  article  to 
receive  the  tax,  the  balance  due  on  account  of  said  tax.  (Tax  Laws  1909, 
p.  143;  Laws  1911,  p.  2117.) 

§  953.     Application  of  Taxes. 

Sec.  (252.)  All  taxes  levied  and  collected  under  this  article  when  paid 
into  the  treasury  of  the  state  shall  be  applicable  to  the  expenses  of  the 
state  government  and  to  such  other  purposes  as  the  legislature  shall  by  law 
direct.  (Tax  Laws  1909,  p.  144.) 


NEW  YORK  STATUTE.  629 

§  954.    Definitions. 

Sec.  (253.)  The  words  "estate"  and  "property,"  as  used  in  this  article, 
shall  be  taken  to  mean  the  property  or  interest  therein  passing  or  trans- 
ferred to  individual  or  corporate  legatees,  devisees,  heirs,  next  of  kin, 
grantees,  donees-  or  vendees,  and  not  as  the  property  or  interest  therein 
of  the  decedent,  grantor,  donor  or  vendor  and  shall  include  all  property 
or  interest  therein,  whether  situated  within  or  without  this  state.  The 
words  "tangible  property"  as  used  in  this  article  shall  be  taken  to  mean 
corporeal  property  such  as  real  estate  and  goods,  wares  and  merchandise, 
and  shall  not  be  taken  to  mean  money,  deposits  in  bank,  shares  of  stock, 
bonds,  notes,  credits  or  evidences  of  an  interest  in  property  and  evidences 
of  debt.  The  words  "intangible  property"  as  used  in  this  article  shall  be 
taken  to  mean  incorporeal  property,  including  money,  deposits  in  bank, 
shares  of  stock,  bonds,  notes,  credits,  evidences  of  an  interest  in  prop- 
erty and  evidences  of  debt.  The  word  "transfer,"  as  used  in  this  article, 
shall  be  taken  to  include  the  passing  of  property  or  any  interest  therein 
in  the  possession  of  enjoyment,  present  or  future,  by  inheritance,  descent, 
devise,  bequest,  grant,  deed,  bargain,  ^sale  or  gift,  in  the  manner  herein 
prescribed.  The  words  "county  treasurer"  and  "district  attorney,"  as 
used  in  this  article,  shall  be  taken  to  mean  the  treasurer  of  the  district 
attorney  of  the  county  of  the  surrogate  having  jurisdiction  as  provided 
in  section  two  hundred  and  twenty-eight  (sec.  9)  of  this  article.  The  words 
"the  intestate  laws  of  this  state,"  as  used  in  this  article,  shall  be  taken 
to  refer  to  all  transfers  of  property,  or  any  beneficial  interest  therein, 
effected  by  the  statute  of  descent  and  distribution  and  the  transfer  of  -any 
property,  or  any  beneficial  interest  therein,  effected  by  operation  of  law 
upon  the  death  of  a  person  omitting  to  make  a  valid  disposition  thereof, 
including  a  husband's  right  as  tenant  by  the  curtesy  or  the  right  of  a 
husband  to  succeed  to  the  personal  property  of  his  wife  who  dies  intestate 
leaving  no  descendants  her  surviving.  (Tax  Laws  1909,  p.  144;  Laws  1911, 
p.  1961.) 

§  955.    Exemptions  in  Article  One  not  Applicable. 

Sec.  (254.)  The  exemptions  enumerated  in  section  four  [this  "section 
four"  enumerates  properties  exempt  from  general  taxation]  of  this  chapter 
shall  not  be  construed  as  being  applicable  in  any  manner  to  the  provisions  of 
this  article.  (Tax  Laws  1909,  p.  144.) 

§  956.    Limitation  of  Time. 

Sec.  (255.)  The  provisions  of  the  Code  of  Civil  Procedure  relative  to 
the  limitation  of  time  of  enforcing  a  civil  remedy  shall  not  apply  to 
any  proceeding  or  action  taken  to  levy,  appraise,  assess,  determine  or 
enforce  the  collection  of  any  tax  or  penalty  prescribed  by  this  article,  and 
this  section  shall  be  construed  as  having  been  in  effect  as  of  date  of  the 
original  enactment  of  the  inheritance  tax  law,  provided,  however,  that 
as  to  real  estate  in  the  hands  of  bona  fide  purchasers,  the  transfer  tax 
shall  be  presumed  to  be  paid  and  cease  to  be  a  lien  as  against  such  pur- 
chasers after  the  expiration  of  six  years  from  the  date  of  accrual.  (Tax 
Law  1909,  p.  145.) 


630  INHERITANCE  TAXATION. 

CHAPTER  XLV. 
NORTH  CAROLINA  STATUTE. 

(g  Pell's  Eevisal,  1908,  pp.  S448-2454;  Laws  of  1909,  pp.  656-668.) 

§  957.  Transfers  Subject  to  Tax — Bate  of  Taxation. 

§  958.  Persons  Liable  for  Tax. 

§  959.  Interest  on  Tax. 

§  960.  Collection  of  Tax  by  Executor. 

§  961.  Estates  for  Life  or  Term  of  Years  or  upon  Contingencj. 

§  962.  Legacies  Charged  upon  Eeal  Estate. 

§  963.  Receipts  and  Vouchers. 

§  964.  Transfers  of  Stocks  or  Bonds  by  Foreign  Executor. 

§  965.  Refunding  Tax  When  Debts  Proved  After  Distribution, 

§  966.  Appraisers  and  Appraisement. 

§  967.  Appraiser  Taking  More  Than  Legal  Fees — Penalty. 

§  968.  Records  to  be  Kept  by  Clerk  of  Court. 

§  969.  Proceedings  in  Case  of  Delinquencies. 

§  970.  Compensation  of  Clerk  of  Court. 

§  971.  Liability  of  Clerk  of  Court. 

§  972.  Returns  to  be  Made  by  Clerk  of  Court. 

§  957.    Transfers  Subject  to  Tax — Rate  of  Taxation. 

Sec.  6.  From  and  after  the  passage  of  this  act,  all  real  and1  personal 
property  of  whatever  kind  and  nature  which  shall  pass  by  will  or  by  the 
intestate  laws  of  this  state  from  any  person  who  may  die  seised  or  possessed 
of  the  same  while  a  resident  of  this  state,  whether  the  person  or  persons 
dying  seised  thereof  be  domiciled  within  or  out  of  the  state,  or  if  the 
decedent  was  not  a  resident  of  this  state  at  the  time  of  his  death,  such 
property  or  any  part  thereof  within  this  state,  or  any  interest  therein  or 
income  therefrom  which  shall  be  transferred  by  deed,  grant,  sale  or  gift, 
made  in  contemplation  of  the  death  of  the  grantor,  bargainer,  donor  or 
assignor,  or  intended  to  take  effect,  in  possession  or  enjoyment  after  such 
death,  to  any  person  or  persons  or  to  bodies  corporate  or  politic,  in  trust  or 
otherwise,  or  by  reason  whereof  any  person  or  body  corporate  or  politic 
shall  become  beneficially  entitled  in  possession  or  expectancy  to  any  prop- 
erty or  the  income  thereof,  shall  be  and  hereby  is  made  subject  to  a  tax 
for  the  benefit  of  the  state,  as  follows,  that  is  to  say:  Where  the  whole 
amount  of  said  legacy  or  distributive  share  of  personal  property  shall  ex- 
ceed in  value  two  thousand  dollars  and  all  in  excess  of  two  thousand  dollars 
the  tax  shall  be: 

First.  Where  the  person  or  persons  entitled  to  any  beneficial  interest  in 
such  property  shall  be  the  lineal  issue  or  lineal  ancestor,  brother  or  sister 
of  the  person  who  died  possessed  of  such  property  aforesaid,  or  where  the 
person  to  whom  such  property  shall  be  devised  or  bequeathed  stood  in  the 
relation  of  child  to  the  person  who  died  possessed  of  such  property  afore- 
said, at  the  rate  of  seventy-five  cents  for  each  and  every  hundred  dollars 


NORTH  CAROLINA  STATUTE.  631 

of  the  clear  value  of  such  interest  in  such  property;  and  this  clause  shall 
apply  to  all  cases  where  the  taxes  have  not  been  paid  by  the  executor  or 
administrator  or  other  representative  of  the  deceased  person.  The  clerk 
of  the  superior  court  shall  determine  whether  any  person  to  whom  prop- 
«rty  is  so  devised  or  bequeathed  stands  in  the  relation  of  child  to  the 
decedent. 

Second.  Where  the  person  or  persons  entitled  to  any  beneficial  interest 
in  such  property  shall  be  the  descendant  of  a  brother  or  sister  of  the  person 
who  died  possessed  as  aforesaid,  at  the  rate  of  one  dollar  and  fifty  cents 
for  each  and  every  hundred  dollars  of  the  clear  value  of  such  interest. 

Third.  Where  the  person  or  persona  entitled  to  any  beneficial  interest  in 
such  property  shall  be  the  brother  or  sister  of  the  father  or  mother,  or  a 
descendant  of  the  brother  or  sister  of  the  father  or  mother  of  the  person 
who  died  possessed  as  aforesaid^  at  the  rate  of  three  dollars  for  each  and 
every  hundred  dollars  of  the  clear  value  of  such  interest. 

Fourth.  Where  the  person  or  persons  entitled  to  any  beneficial  interest 
in  such  property  shall  be  the  brother  or  sister  of  the  grandfather  or  grand- 
mother, or  a  descendant  of  the  brother  or  sister  of  the  grandfather  or 
grandmother  of  the  person  who  died  possessed  as  aforesaid,  at  the  rate  of 
four  dollars  for  each  and  every  hundred  dollars  of  the  clear  value  of  such 
interest. 

Fifth.  Where  the  person  or  persons  entitled  to  any  beneficial  interest 
in  such  property  shall  be  in  any  other  degree  of  collateral  consanguinity 
than  is  hereinbefore  stated,  or  shall  be  a  stranger  in  blood  to  the  person 
who  died  possessed  as  aforesaid,  or  shall  be  a  body  politic  or  corporate, 
where  the  whole  amount  of  said  legacy  or  distributive  share  of  personal 
property  shall  exceed  two  thousand  dollars  and  shall  not  exceed  five  thou- 
sand dollars,  the  tax  shall  be  at  the  rate  of  five  dollars  for  each  and  every 
hundred  dollars  of  the  clear  value  of  such  interest;  provided,  that  all  lega- 
cies or  property  passing  by  will  or  by  .the  laws  of  this  state  to  husband 
or  wife  of  the  person  who  died  possessed  as  aforesaid,  or  for  religious, 
charitable  or  educational  purposes,  shall  be  exempt  from  tax  or  duty.  Where 
the  amount  or  value  of  said  property  shall  exceed  the  sum  of  five  thousand 
dollars,  but  shall  not  exceed  the  sum  or  value  of  ten  thousand  dollars,  the 
rates  of  tax  above  set  forth  shall  be  multiplied  by  one  and  one-half;  and 
where  the  amount  or  value  of  said  property  shall  exceed  the  sum  of  ten 
thousand  dollars,  but  shall  not  exceed  the  sum  of  twenty-five  thousand  dollars, 
such  rates  of  tax  shall  be  multiplied  by  two;  and  where  the  amount  or 
value  of  said  property  shall  exceed  the  sum  of  twenty-five  thousand  dollars, 
but  shall  not  exceed  the  sum  of  fifty  thousand  dollars,  such  rates  of  tax 
shall  be  multiplied  by  two  and  one-half;  and  where  the  amount  of  value  of 
said  property  shall  exceed  the  sum  of  fifty  thousand  dollars,  such  rates  of 
tax  shall  be  multiplied  by  three,  but  this  graduated  increase  of  rate  shall 
only  apply  to  the  provisions  of  subdivision  five  of  this  section.  (Laws  1909, 
p.  656.) 

§  958.    Persons  Liable  for  Tax. 

Sec.  7.  All  heirs,  legatees,  devisees,  administrators,  executors  and  trus- 
tees shall  only  be  discharged  from  liability  for  the  amount  of  such  taxes, 


G32  INHERITANCE  TAXATION. 

the  settlement  of  which  they  may  be  charged  with,  by  paying  the  same  for 
the  use  aforesaid  as  hereinafter  provided.     (Laws  1909,  p.  658.) 

§  959.     Interest  on  Tax. 

Sec.  8.  That  if  said  tax  is  not  paid  at  the  end  of  two  years  after  the 
death  of  the  decedent  six  per  cent  per  annum  shall  be  charged  thereon  until 
same  is  paid.  (Laws  1909,  p.  658.) 

§  960.     Collection  of  Tax  by  Executor. 

Sec.  9.  The  executor  or  administrator  or  other  trustee  paying  any  legacy 
or  share  in  the  distribution  of  any  estate  subject  to  said  tax  shall  deduct 
therefrom  at  the  rate  prescribed,  or  if  the  legacy  or  share  in  the  estate  be 
not  money  he  shall  demand  payment  of  a  sum  to  be  computed  at  the  same 
rates  upon  the  appraised  value  thereof  for  the  use  of  the  state;  and  no 
executor  or  administrator  shall  be  compelled  to  pay  or  deliver  any  specific 
legacy  or  article  to  be  distributed,  subject  to  tax,  except  on  the  payment 
into  his  hands  of  a  sum  computed  on  its  value  as  aforesaid;  and  in  case  of 
neglect  or  refusal  on  the  part  of  said  legatee  to  p'ay  the  same  such  specific 
legacy  or  article  or  so  much  thereof  aa  shall  be  necessary  shall  be  sold 
by  such  executor  or  administrator  at  public  sale,  after  notice  to  such  legatee, 
and  the  balance  that  may  be  left  in  the  hands  of  the  executor  or  admin- 
istrator shall  be  distributed  as  is  or  may  be  directed  by  law;  and  every 
sum  of  money  retained  by  an  executor  or  administrator  or  paid  into  his 
hands  on  account  of  any  legacy  or  distributive  share  for  the  us-e  of  the 
state  shall  be  paid  by  him  to  the  proper  officer  without  delay.  (Laws  1909, 
p.  658.) 

§  961.    Estates  for  Life  or  Term  of  Years  or  upon  Contingency. 

Sec.  10.  If  the  legacy  subject  to  said  tax  be  given  to  any  person  for  life 
or  for  a  term  of  years  or  for  any  other  limited  period,  upon  a  condition  or 
contingency,  if  the  same  be  money,  the  tax  thereon  shall  be  retained  upon, 
the  whole  amount;  but  if  not  money,  application  shall  be  made  to  the  court 
having  jurisdiction  of  the  accounts  of  executors  and  administrators  to  make 
apportionment,  if  the  case  requires  it,  of  the  sum  to  be  paid  by  such  legatee, 
and  for  such  further  order  relative  thereto  as  equity  shall  require.  (Laws 
1909,  p.  659.) 

§  962.    Legacies  Charged  upon  Real  Estate. 

Sec.  11.  Whenever  such  legacy  shall  be  charged  upon  or  payable  out  of 
real  estate  the  heir  or  devisee  of  such  real  estate,  before  paying  the  same 
to  such  legatee,  shall  deduct  therefrom  at  the  rates  aforesaid,  and  pay  the 
amount  so  deducted  to  the  executor  or  administrator,  and  the  same  shall 
remain  a  charge  upon  such  real  estate  until  paid,  and  in  default  thereof  the 
same  shall  be  enforced  by  the  decree  of  the  court  in  the  sam«  manner  as 
the  payment  of  such  legacy  may  be  enforced;  provided,  that  all  taxes  im- 
posed by  this  act  shall  be  a  lien  upon  the  personal  property  of  the  estate 
on  which  the  tax  is  imposed  or  upon  the  proceeds  arising  from  the  sale  of 
such  property,  from  the  time  said  tax  is  due  and  payable,  and  shall  continue 


NORTH  CAROLINA  STATUTE.  633 

a  lien  until  said  tax  is  paid  and  receipted  for  by  the  proper  officer  of  the  state. 
(Laws  1909,  p.  659.) 

$  963.    Receipts  and  Vouchers. 

See.  12.  It  shall  be  the  duty  of  any  executor  or  administrator,  on  the 
payment  of  said  tax,  to  take  duplicate  receipts  from  the  clerk  of  the  court, 
one  of  which  shall  be  forwarded  forthwith  to  the  auditor  of  the  state,  whose 
duty  it  shall  be  to  charge  the  clerk  receiving  the  money  with  the  amount, 
and  seal  with  the  seal  of  bis  office  and  countersign  the  receipt  and  transmit 
it  to  the  executor  or  administrator,  whereupon  it  shall  be  a  proper  voucher 
in  the  settlement  of  the  estate,  but  in  no  event  shall  an  executor  or  admin- 
istrator be  entitled  to  a  credit  in  his  account  by  the  clerk  unless  the  receipt 
is  so  sealed  and  countersigned  by  the  auditor  of  the  state.  (Laws  1909, 
p.  659.) 

§  964.    Transfers  of  Stocks  or  Bonds  by  Foreign  Executor. 

Sec.  13.  Whenever  any  foreign  executor  or  administrator  or  trustee  shall 
assign  or  transfer  any  stocks  or  bonds  in  this  state  standing  in  the  name 
of  the  decedent  or  in  trust  for  a  decedent,  which  shall  be  liable  for  the  said 
tax,  such  tax  shall  be  paid  on  the  transfer  thereof  to  the  clerk  of  the  court 
of  the  county  where  such  transfer  is  made;  otherwise  the  corporation  permit- 
ting such  transfer  shall  become  liable  to  pay  such  tax.  (Laws  1909,  p.  660.) 

§  965.     Refunding  Tax  When  Debts  Proved  After  Distribution. 

Sec.  14.  Whenever  debts  shall  be  proven  against  the  estate  of  a  decedent,  after 
the  distribution  of  legacies  from  which  the  inheritance  tax  has  been  deducted 
in  compliance  with  this  act,  and  the  legatee  is  required  to  refund  any  portion 
of  the  legacy,  a  proportion  of  the  said  tax  shall  be  repaid  to  him  by  the 
executor  or  administrator  if  the  said  tax  has  not  been  paid  into  the  state 
treasury,  or  shall  be  refunded  by  the  state  treasurer  if  it  has  bgen  so  paid  in. 
(Laws  1909,  p.  660.) 

§  966.    Appraisers  and  Appraisement. 

Sec.  15.  It  shall  be  the  duty  of  the  clerk  of  the  court  of  the  county  in 
which  letters  testamentary  or  of  administration  are  granted  to  appoint  an 
appraiser,  as  often  as  and  whenever  occasion  may  require,  to  fix  the  valuation 
of  estates  which  are  or  shall  be  subject  to  inheritance  tax,  and  it  shall  be  the 
duty  of  said  appraiser  to  make  a  fair  and  conscionable  appraisement  of  such 
estates ;  and  it  shall  further  be  the  duty  of  such  appraiser  to  assess  and  fix 
the  cash  value  of  all  annuities  and  life  estates  growing  out  of  said  estates, 
upon  which  annuities  and  life  estates  the  inheritance  tax  shall  be  immediately 
payable  out  of  the  estate  at  the  rate  of  such  valuation ;  provided,  that  any  per- 
son or  persons  not  satisfied  with  said  appraisement  shall  have  the  right  to 
appeal  within  sixty  days  to  the  court  of  the  proper  county  on  paying  or  giving 
security  to  pay  all  costs,  together  with  whatever  tax  shall  be  fixed  by  said 
court,  and  upon  such  appeal  said  court  shall  have  jurisdiction  to  determine 
all  questions  of  valuation  and  of  the  liability  of  the  appraised  estate  for 
such  tax,  subject  to  the  right  of  appeal  to  the  supreme  court  as  in  other 


634  INHERITANCE  TAXATION. 

cases.  The  compensation  of  appraisers  appointed  under  this  act  shall  be  at 
the  rate  of  three  dollars  per  day  for  each  day  necessarily  employed  in  mak- 
ing the  appraisement,  together  with  such  necessary  traveling  expenses  as 
may  be  incurred,  a  statement  of  which  shall  be  properly  itemized  and  sworn 
to,  subject  to  the  final  approval  of  the  auditor  of  state  before  payment 
is  made  by  the  clerk  of  the  court.  (Laws  1909,  p.  660.) 

§  967.    Appraiser  Taking  More  Than  Legal  Fees — Penalty. 

Sec.  16.  It  shall  be  a  misdemeanor  for  any  appraiser  appointed  by  the 
clerk  to  make  any  appraisement  in  behalf  of  the  state  to  take  any  fee  or 
reward  from  any  executor  or  administrator,  legatee,  next  of  kin  or  heir  of 
any  decedent,  and  for  any  such  offense  the  clerk  of  the  court  shall  dismiss 
him  from  such  service,  and  upon  conviction  in  the  superior  court  he  shall  be 
fined  not  exceeding  five  hundred  dollars  and  imprisoned  not  exceeding  one 
year,  or  both,  or  either,  at  the  discretion  of  the  court.  (Laws  1909,  p.  661.) 

§  968.    Records  to  be  Kept  by  Clerk  of  Court. 

Sec.  17.  It  shall  be  the  duty  of  the  clerk  of  the  court  to  enter  in  a  book 
to  be  provided  at  the  expense  of  the  state,  to  be  kept  for  that  purpose,  and 
which  shall  be  a  public  record,  the  returns  made  by  all  appraisers,  under 
this  act,  opening  an  account  in  favor  of  the  state  against  the  decedent's 
estate;  and  the  clerk  may  give  certificates  of  payment  of  such  tax  from 
such  record;  and  it  shall  be  the  duty  of  the  clerk  of  the  court  to  transmit 
to  the  auditor  of  the  state  on  the  first  Monday  of  each  month  a  statement 
of  all  returns  made  by  appraisers  during  the  preceding  month,  giving  the 
name  of  the  estate  and  the  clear  valuation  thereof,  subject  to  the  foregoing 
tax,  and  the  amount  of  the  tax,  which  statement  shall  be  entered  by  the 
auditor  in  a  book  to  be  kept  by  him  for  that  purpose;  and  whenever  any 
such  tax  shall  have  remained  due  and  unpaid  for  one  year  it  shall  be  lawful 
for  the  clerk  of  the  court  to  apply  to  the  court  by  bill  or  petition  to  enforce 
the  payment  of  the  same;  whereupon  said  court,  having  caused  due  notice 
to  be  given  to  the  owner  or  owners  of  the  estate  charged  with  the  tax  and 
to  such  other  person  or  persons  as  may  be  interested,  shall  proceed  accord- 
ing to  equity  to  make  such  decrees  or  orders  for  the  payment  of  the  said 
tax  out  of  such  estates  as  shall  be  just  and  proper.  (Laws  1909,  p.  661.) 

§  969.    Proceedings  in  Case  of  Delinquencies. 

Sec.  18.  If  the  clerk  of  the  court  shall  discover  that  said  tax  has  not 
been  paid  according  to  law,  the  court  shall  be  authorized  to  cite  the  execu- 
tors or  administrators  of  the  decedent  whose  estate  is  subject  to  the  tax 
to  file  an  account  or  to  issue  a  citation  to  the  executors,  administrators, 
legatees  or  heirs  citing  them  to  appear  on  a  day  certain  and  show  cause 
why  the  said  tax  should  not  be  paid,  and  when  personal  service  cannot  be 
had,  notice  shall  be  given  for  four  weeks,  once  a  week,  in  at  least  one 
newspaper  published  in  said  county;  and  if  the  said  tax  shall  be  found  to 
be  due  and  unpaid  the  said  delinquent  shall  pay  said  tax,  interest  and  costs; 
and  it  shall  be  the  duty  of  the  solicitor  of  the  district  in  which  the  said 
delinquent  resides  to  sue  for  the  recovery  and  amount  of  such  tax,  and 
for  such  services  he  shall  be  allowed  a  fee,  to  be  fixed  by  the  judge,  not  to 


NORTH  CAROLINA  STATUTE.  635 

exceed  five  per  cent  of  the  amount  recovered.  The  auditor  of  the  state  is 
authorized  and  empowered,  in  settlement  of  accounts  of  any  clerk,  to  allow 
him  costs  of  advertising  and  other  reasonable  fees  and  expenses  incurred  in 
the  collection  of  said  tax.  (Laws  1909,  p.  661.) 

§  970.     Compensation  of  Clerk  of  Court. 

Sec.  19.  The  clerks  of  the  courts  of  the  several  counties  of  this  state 
shall  be  the  agents  of  the  state  for  the  collection  of  the  said  tax,  and  for 
services  rendered  in  collecting  and  paying  over  the  same  the  said  agents 
shall  be  allowed  to  retain  for  their  own  use  such  percentage  as  may  be 
allowed  by  the  auditor,  not  exceeding  three  per  centum  on  all  taxes  paid 
and  accounted  for.  (Laws  1909,  p.  662.) 

§  971.    Liability  of  Clerk  of  Court. 

See.  20.  The  said1  clerks  of  the  courts  shall  be  liable  on  their  official 
bonds  to  the  state  for  the  faithful  performance  of  the  duties  hereby  im- 
posed and  for  the  regular  accounting  and  paying  over  of  the  amounts  to 
be  collected  and  received.  (Laws  1909,  p.  662.) 

§  972.    Returns  to  be  Made  by  Clerk  of  Court. 

Sec.  21.  It  shall  be  the  duty  of  the  clerk  of  the  court  of  each  county  to 
make  returns  and  payments  to  the  state  treasurer  of  the  taxes  under  this  act 
which  he  shall  have  received,  stating  for  what  estate  paid,  on  the  first  Monday 
of  each  month;  and  for  all  taxes  collected  by  him  and  not  paid  over  to  the 
state  treasurer  within  ten  days  after  said  monthly  return  of  the  same  he 
shall  pay  interest  at  the  rate  of  twelve  per  centum  per  annum  until  paid. 
(Laws  1909,  p.  662.) 


636  INHERITANCE   TAXATION. 


CHAPTER  XLVI. 
NORTH  DAKOTA  STATUTE. 

(Laws  of  1903,  c.  171;  Revised  Code  of  1905,  pp.  1S7S-1S76.) 

§  973.  Transfers  Subject  to  Tax — Rates — Lien. 

§  974.  Deduction  of  Debts  and  Costs. 

§  975.  Property  Subject  to  Tax. 

§  976.  Meaning  of  Collateral  Heirs — Pending  Estates. 

§  977.  Property  Belonging  to  Foreign  Estates  Liable  to  Tax  in  This  State. 

§.  978.  Property  of  Foreign  Estate  in  Part  Exempt  in  This  State. 

§  979.  Inventory  to  be  Filed  by  Executor — Lien  of  Tax. 

§  980.  Appraisement  of  Property. 

§  981.  Estate  for  Life  or  for  Years  and  Remainders. 

§  982.  Estate  for  Life  or  for  Years  and  Remainders. 

§  983.  Bequest  to  Executor  in  Lieu  of  Compensation, 

§  984.  Legacies  Charged  upon  Real  Estate. 

§  985.  Collection  of  Tax  by  Executor. 

§  986.  Time  for  Payment  of  Tax— Interest. 

§  987.  Appraisement  of  Real  Estate. 

§  988.  Payment  by  Executor  to  State  Treasurer. 

§  989.  Filing  Description  of  Real  Estate  in  Case  of  Remainder. 

§  990.  Filing  Appraisement  With  State  Treasurer. 

§  991.  Account  of  Executor  not  Allowed  Until  Taxes  Paid. 

§  992.  Jurisdiction  of  District  Court. 

§  973.     Transfers  Subject  to  Tax — Bates — Lien. 

Sec.  8320.  All  property  within  the  jurisdiction  of  this  state,  and  any  in- 
terest therein,  whether  belonging  to  the  inhabitants  of  this  state  or  not,  and 
whether  tangible  or  intangible,  which  shall  pass  by  will  or  by  the  statutes  of 
succession  or  inheritance  of  this  or  any  other  state,  or  by  deed,  grant,  sale 
or  gift  intended  to  take  effect  in  possession  or  in  enjoyment  after  the  death 
of  the  grantor  or  donor,  to  any  person  in  trust  or  otherwise,  other  than  to 
or  for  the  use  of  the  father,  mother,  husband,  wife,  lineal  descendant,  adopted 
child,  the  lineal  descendant  of  an  adopted  child  of  a  decedent .  or  to  or  for 
charitable,  educational  or  religious  societies  or  institutions  within  this  state, 
shall  be  subject  to  a  tax  of  two  per  centum  of  its  valuation,  above  the  sum 
of  twenty-five  thousand  dollars,  after  the  payment  of  all  debts,  for  the 
use  of  the  state;  and  all  administrators,  executors  and  trustees,  and  any  such 
grantee  under  a  conveyance,  and  any  such  donee  under  a  gift,  made  during 
the  grantor's  or  donor's  life,  shall  be  respectively  liable  for  all  such  taxes 
to  be  paid  by  them,  respectively,  except  as  herein  otherwise  provided,  with 
lawful  interest  as  hereinafter  set  forth,  until  the  same  shall  have  been  paid. 
The  tax  aforesaid  shall  be  and  remain  a  lien  on  such  estate  from  the  death 
of  the  decedent  until  paid.  (Laws  1903,  e.  171  j.  Rev.  Code  1906,  sec.  8320.) 


NORTH  DAKOTA  STATUTE.  637 

§  974.    Deduction  of  Debts  and  Costs. 

Sec.  8321.  The  terra  "debts"  shall  include,  in  addition  to  debts  owing  by 
decedent  at  the  time  of  his  death,  the  local  or  state  taxes  due  from  the  estate 
prior  to  his  death,  and  a  reasonable  sum  for  funeral  expenses,  court  costs, 
including  the  costs  of  appraisement  made  for  the  purpose  of  assessing  the 
collateral  succession  or  inheritance  tax,  the  statutory  fees  of  executors,  admin- 
istrators or  trustees,  and  no  other  sum;  but  said  debts  shall  not  be  deducted 
unless  the  same  are  approved  and  allowed,  within  fifteen  months  from  the 
death  of  decedent,  as  established  claims  against  the  estate,  unless  otherwise 
ordered  by  the  judge  or  court  of  the  proper  county.  (Laws  1903,  c.  171; 
Eev.  Code  1905,  sec.  8321.) 

§  975.     Property  Subject  to  Tax. 

Sec.  8322.  Except  as  to  property  passing  to  persons,  corporations  or  soci- 
eties exempted  by  section  8320  from  the  collateral  succession  or  inheritance 
tax,  and  real  property  located  outside  of  the  state  passing  in  fee  from  the 
decedent  owner,  the  tax  imposed  under  the  provisions  of  this  chapter  shall 
be  assessed  and  be  collected  from,  property  of  every  kind,  which,  at  the 
death  of  the  decedent  owner  is  subject  to  or  thereafter,  for  the  purpose  of 
distribution,  is  brought  into  this  state  for  distribution  purposes,  or  which 
was  owned  by  any  decedent  domiciled  within  the  state  at  the  time  of  the 
death  of  such  decedent,  even  though  the  property  of  said  decedent  so  dom- 
iciled .was  situated  outside  of  the  state.  (Laws  1903,  e.  171;  Kev.  Code 
1905,  sec.  8322.) 

§  976.    Meaning  of  Collateral  Heirs — Pending  Estates. 

Sec.  8323.  In  the  construction  of  this  chapter  the  words  "collateral  heirs" 
shall  be  held  to  mean  all  persons  who  are  not  excepted  from  the  provisions 
of  the  collateral  succession  or  inheritance  tax  under  the  provisions  of  this 
chapter,  except  section  8322,  shall  apply  to  all  pending  estates  which  are 
not  closed,  and  the  property  subjected  by  this  chapter  to  the  said  tax  is 
liable  to  the  provisions  herein  contained,  as  to  the  -amount  and  lien  hereof, 
and  the  manner  of  enforcement  and  collection  thereof,  except  as  herein  spe- 
cifically provided  otherwise.  (Laws  1903,  c.  171;  Eev.  Code  1905,  sec.  8323.) 

§  977.  Property  Belonging  to  Foreign  Estates  Liable  to  Tax  in  This  State. 
Sec.  8324.  Whenever  any  property  belonging  to  a  foreign  estate,  which 
estate,  in  whole  or  in  part,  is  liable  to  pay  a  collateral  succession  or  inheritance 
tax  in  this  state,  and  said  tax  shall  be  assessed  upon  the  market  value  of 
said  property  remaining  after  the  payment  of  such  debts  and  expenses  as 
are  chargeable  to  the  property  under  the  laws  of  this  state;  in  the  event 
that  the  executor,  administrator  or  trustee  of  such  foreign  estate  files  with 
the  clerk  of  the  court  having  ancillary  jurisdiction,  and  with  the  state  treas- 
urer, duly  certified  statements  exhibiting  the  true  market  value  of  the  entire 
estate  of  the  decedent  owner,  and  the  indebtedness  for  which  the  said  estate 
has  been  adjudged  liable,  which  statement  shall  be  duly  attested  by  the 
judge  of  the  court  having  original  jurisdiction,  the  beneficiaries  of  said  estate 
shall  then  be  entitled  to  hava  deducted  such  proportion  of  the  said  indebt- 


638  INHERITANCE  TAXATION. 

edness  of  the  decedent  from  the  value  of  the  property  as  the  value  of  the 
property  within  this  state  bears  to  the  value  of  the  entire  estate.  (Laws 
1903,  c.  171;  Eev.  Code  1905,  see.  8324.) 

§  978.    Property  of  Foreign  Estate  in  Part  Exempt  in  This  State. 

Sec.  8325.  Whenever  any  property,  real  or  personal,  within  this  state 
belongs  to  a  foreign  estate,  and  said  foreign  estate  is  in  part  exempt  from 
the  collateral  succession  or  inheritance  tax,  and  in  part  subject  to  said 
collateral  succession  or  inheritance  tax,  and  it  is  within  the  authority  or 
discretion  of  the  foreign  executor,  administrator  or  trustee  administering  the 
estate  to  dispose  of  the  property,  not  specifically  devised  to  direct  heirs  or 
devisees  in  the  payment  of  the  debts  owing  by  the  decedent  at  the  time  of 
his  death,  or  in  the  satisfaction  of  legacies,  devises  or  trusts  given  to  direct 
and  collateral  legatees  or  devisees,  or  in  payment  of  the  distributive  shares 
of  any  direct  and  collateral  heirs,  then  the  property  within  the  jurisdiction 
of  this  state  belonging  to  such  foreign  estate,  shall  be  subject  to  the  collateral 
succession  or  inheritance  tax  imposed  under  the  provisions  hereof,  and  the 
tax  due  thereon  shall  be  assessed  as  provided  in  section  8324,  and  with  the 
same  proviso  respecting  the  deduction  of  the  proportionate  share  of  the  in- 
debtedness, as  herein  provided.  (Laws  1903,  e.  171;  Eev..  Code  1905,  sec. 
8325.) 

§  979.    Inventory  to  be  Filed  by  Executor — Lien  of  Tax. 

Sec.  8326.  It  shall  be  the  duty  of  the  executor,  administrator  or  trustee, 
immediately  upon  his  appointment,  to  make  and  file  a  separate  inventory,  any 
will  to  the  contrary  notwithstanding,  of  all  the  real  estate  of  the  decedent 
liable  to  such  tax,  and  to  cause  the  lien  of  the  same  to  be  entered  upon  the 
lien  book  in  the  office  of  the  clerk  of  the  court  in  each  county  where  each 
particular  part  of  said  real  estate  is  situated,  and  no  conveyance  of  said 
estate  or  interest  therein,  which  is  subject  to  such  tax  before  or  after  the 
entering  of  said  lien,  shall  discharge  the  estate  so  conveyed  from  the  opera- 
tion thereof.  (Laws  1903,  c.  171;  Rev.  Code  1905,  sec.  8326.) 

§  980.    Appraisement  of  Property. 

Sec.  8327.  All  the  real  estate  of  the  decedent  subject  to  such  tax  shall, 
except  as  hereinafter  provided,  be  appraised  within  thirty  days  next  after 
the  appointment  of  an  executor,  administrator  or  trustee,  and  the  tax  thereon, 
calculated  upon  the  appraised  value  after  deducting  debts  for  which  the 
estate  is  liable  shall  be  paid  by  the  person  entitled  to  said  estate  within 
fifteen  months  from  the  approval  by  the  court  of  such  appraisement,  unless 
a  longer  period  is  fixed  by  the  court,  and  in  default  thereof,  the  court  shall 
order  the  same,  or  so  much  thereof  as  may  be  necessary  to  pay  such  tax,  to 
be  sold.  (Laws  1903,  c.  171;  Rev.  Code  1905,  see.  832-7.) 

§  981.    Estate  for  Life  or  for  Years  and  Remainders. 

Sec.  8328.  When  any  person  whose  estate,  over  and  above  the  amount  of 
his  just  debts,  exceeds  the  sum  of  one  thousand  dollars  shall  bequeath  or 
devise  any  real  property  to  or  for  the  use  of  the  fathgr,  mother,  husband, 


NORTH  DAKOTA  STATUTE.  639 

wife,  lineal  descendant,  adopted  child,  or  lineal  descendant  of  such  child, 
during  life  or  for  a  term  of  years,  and  the  remainder  to  a  collateral  heir 
or  to  a  stranger  to  the  blood,  the  court,  upon  the  determination  of  such  estate 
for  life  or  years,  shall  upon  its  own  motion  or  upon  the  application  of  the 
etate  treasurer,  cause  such  estate  to  be  appraised  at  its  then  actual  market 
value,  from  which  shall  be  deducted  the  value  of  any  improvements  thereon, 
or  betterments  thereto,  if  any,  made  by  the  remainderman,  during  the  time 
of  the  prior  estate,  to  be  ascertained  and  determined  by  the  appraisers,  and 
the  tax  on  the  remainder  shall  be  paid  by  such  remainderman  within  sixty 
days  from  the  approval  by  the  court  of  the  report  of  the  appraisers.  If  such 
tax  is  not  paid  within  said  time,  the  court  shall  then  order  said  real  estate, 
or  so  much  thereof  as  shall  be  necessary  to  pay  such  tax,  to  be  sold.  (Laws 
1903,  c.  171;  Rev.  Code  1905,  sec.  8328.) 

§  982.    Estate  for  Life  or  for  Years  and  Remainders. 

See.  8329.  Whenever  any  real  estate  of  a  decedent  shall  be  subject  to 
such  tax,  and  there  be  a  life  estate  or  interest  for  a  term  of  years  given  to 
a  party  other  than  named  in  the  preceding  section,  and  the  remainder  to 
a  collateral  heir  or  stranger  to  the  blood,  the  court  shall  direct  the  interest 
of  the  life  estate  or  term  of  years  to  be  appraised  at  the  actual  market 
value  thereof,  and  upon  the  approval  of  such  appraisement  by  the  court,  the 
party  entitled  to  such  life  estate,  or  term  of  years,  shall  within  sixty  days 
thereafter  pay  such  tax,  and  in  default  thereof  the  court  shall  order  such 
interest  in  said  estate,  or  so  much  thereof  as  shall  be  necessary  to  pay  such 
tax,  to  be  sold.  Upon  the  determination  of  such  life  estate  or  term  of 
years,  the  same  provision  shall  apply  as  to  the  ascertainment  of  the  amount 
of  the  tax  and  the  collection  of  the  same  on  the  real  estate  in  remainder  as 
in  like  cases  is  provided  in  the  preceding  section.  Whenever  any  personal 
estate  of  a  decedent  shall  be  subject  to  such  tax,  and  there  be  a  life  estate 
or  interest  for  a  term  of  years  given  to  a  party  other  than  named  in  the 
preceding  section,  and  the  remainder  to  a  collateral  heir  or  stranger  to  the 
blood,  the  court  shall  inquire  into  and  determine  the  value  of  the  life  estate 
or  interest  for  a  term  of  years,  and  order  and  direct  the  amount  of  the  tax 
thereon  to  be  paid  by  the  prior  estate  and  that  to  be  paid  by  the  remainder- 
man, each  of  whom  shall  pay  their  proportion  of  such  tax  within  sixty  days 
from  such  determination,  unless  a  longer  period  is  fixed  by  the  court,  and 
in  default  thereof  the  executor,  administrator  or  trustee  shall  pay  the  same 
out  of  said  property,  and  hold  the  same  from  distribution,  and  invest  it  at 
interest  under  the  order  of  the  court  until  said  tax  is  paid,  or  until  the 
interest  on  the  same  equals  the  amount  of  such  tax,  which  shall  thereupon 
be  paid.  (Laws  1903,  c.  171;  Eev.  Code  1905,  sec.  8329.) 

§  983.    Bequest  to  Executor  in  Lieu  of  Compensation. 

Sec.  8330.  Whenever  a  decedent  appoints  one  or  more  executors  or  trus- 
tees, and  in  lieu  of  their  allowance  or  commission,  makes  a  bequest  or  devise 
of  property  to  them  which  would  otherwise  be  liable  to  said  tax,  or  appoints 
them  his  residuary  legatees,  and  said  bequests,  devises  or  residuary  legacies, 
exceed  what  would  be  a  reasonable  compensation  for  their  services,  such 


640  INHERITANCE  TAXATION. 

excess  shall  be  liable  to  such  tax,  and  the  court  having  jurisdiction  of  their 
accounts,  upon  its  own  motion  or  on  the  application  of  the  state  treasurer, 
shall  fix  such  compensation.  (Laws  1903,  c.  171;  Kev.  Code  1905,  sec.  8330.) 

§  984.     Legacies  Charged  upon  Beal  Estate. 

Sec.  8331.  Whenever  any  legacies  subject  to  said  tax  are  charged  upon 
or  payable  out  of  any  real  estate,  the  heir  or  devisee,  before  paying  the 
same,  shall  deduct  said  tax  therefrom  and  pay  it  to  the  executor,  admin- 
istrator, trustee  or  state  treasurer,  and  the  same  shall  remain  a  charge  and 
be  a  lien  upon  said  real  estate  until  jt  is  paid;  and  payment  thereof  shall 
be  enforced  by  the  executor,  administrator,  trustee  or  state  treasurer  in  his 
name  of  office,  in  the  same  manner  as  the  payment  of  the  legacy  itself  could 
be  enforced.  (Laws  1903,  c.  171;  Eev.  Code  1905,  sec.  8331.) 

§  985.     Collection  of  Tax  by  Executor. 

Sec.  8332.  Every  executor,  administrator  or  trustee  having  in  charge  or 
trust  any  property  subject  to  said  tax,  and  which  is  made  payable  to  him, 
shall  deduct  the  tax  therefrom,  or  shall  collect  the  tax  thereon  from  the 
legatee,  or  person  entitled  to  said  property,  and  he  shall  not  deliver  a  specific 
legacy  or  property  subject  to  said  tax  to  any  person  until  he  has  collected 
the  tax  thereon.  (Laws  1903,  c.  171;  Kev.  Code  1905,  sec.  8332.) 

§  986.     Time  for  Payment  of  Tax — Interest. 

Sec.  8333.  All  taxes  imposed  by  the  provisions  of  this  chapter  shall  be 
payable  to  the  state  treasurer,  and  those  which  are  made  payable  by  executors, 
administrators  or  trustees  shall  be  paid  within  fifteen  months  from  the  death 
of  the  testator  or  intestate,  or  within  fifteen  months  from  assuming  of  the 
trust  by  such  trustee,  unless  a  longer  period  is  fixed  by  the  court.  All  taxes 
not  paid  within  the  time  prescribed  in  this  chapter  shall  draw  interest  at 
the  rate  of  eight  per  centum  per  annum  until  paid.  (Laws  1903,  e.  171; 
Eev.  Code  1905,  sec.  8333.) 

§  987.    Appraisement  of  Heal  Estate. 

Sec.  8334.  All  appraisements  of  real  estate  subject  to  such  tax  shall  be 
made  and  filed  in  the  manner  provided  for  appraisement  of  personal  prop- 
erty. When  such  real  estate  is  situated  in  another  county  the  same  appraisers 
may  serve,  or  others  may  be  appointed.  (Laws  1903,  c,  171;  Eev.  Code  1905, 
sec.  8334.) 

§  988.    Payment  by  Executor  to  State  Treasurer. 

Sec.  8335.  It  is  hereby  made  the  duty  of  all  executors,  administrators  or 
trustees  charged  with  the  management  or  settlement  of  any  estate  subject 
to  the  tax  provided  for  in  this  chapter,  to  collect  and  pay  to  the  state 
treasurer  the  amount  of  the  tax  due  from  any  devisee,  grantee  or  donee  of 
the  decedent,  except  in  cases  falling  under  the  provisions  of  sections  8329 
and  8330  hereof,  in  which  cases  the  state  treasurer  shall  collect  the  same. 
Applications  may  be  made  to  the  district  court  by  such  executor,  admin- 
istrator, trustee  or  state  treasurer  to  sell  the  real  estate  subject  to  said  tax 


NORTH  DAKOTA  STATUTE.  G'll 

in  an  equitable  action,  or,  if  made  to  the  court  having  charge  of  the  settle- 
ment of  said  estate,  the  proceedings  shall  conform  as  nearly  as  may  be  to 
those  for  the  sale  of  real  estate  of  a  decedent  for  the  settlement  of  his  debts.- 
(Laws  1903,  c.  171;  Rev.  Code  1905,  sec.  8335.) 

§  989.    Filing  Description  of  Real  Estate  in  Case  of  Remainder. 

Sec.  8336.  Whenever  any  real  estate  of  a  decedent  shall  so  pass,  either 
in  possession  and  enjoyment  or  in  remainder  as  to  the  subject  of  such  tax, 
the  executor,  administrator  or  trustee,  within  six  months  after  he  has  assumed 
the  duties  of  his  trust,  shall  file  with  the  state  treasurer  a  description  of  such 
real  estate,  giving  the  name  of  the  county  where  the  same  is  situated,  the 
name  of  the  decedent,  the  name  of  the  person  or  persons  to  whom  it  so  passes, 
whether  the  same  passes  in  possession  and  enjoyment  in  fee,  for  life  or 
for  a  term  of  years,  naming  the  term  of  years,  and  if  a  prior  estate  is 
created,  he  shall  give  the  name  of  the  remainderman.  (Laws  1903,  c.  171; 
Eev.  Code  1905,  sec.  8336.) 

§  990.     Filing  Appraisement  With  State  Treasurer. 

Sec.  8337.  As  soon  as  any  such  real  estate  is  appraised,  it  shall  be  the 
duty  of  the  executor,  administrator  or  trustee  if  he  has  not  been  discharged, 
and  if  he  has  finally  been  discharged,  then  it  shall  be  the  duty  of  the  clerk, 
to  file  with  the  state  treasurer  a  copy  of  such  appraisement,  stating  also 
the  amount  of  tax  to  be  paid  and  within  what  time  ordered  to  be  paid. 
(Laws  1903,  c.  171;  Eev.  Code  1905,  see.  8337.) 

§  991.    Account  of  Executor  not  Allowed  Until  Taxes  Paid. 

Sec.  8338.  No  final  settlement  of  the  account  of  any  executor,  adminis- 
trator or  trustee  shall  be  accepted  or  allowed  unless  it  shall  show,  and  the 
court  shall  find,  that  taxes  imposed  by  the  provisions  of  this  chapter  upon 
any  property  or  interest  therein  belonging  to  the  estate  to  be  paid  by  such 
executors,  administrators  or  trustees,  and  to  be  settled  by  said  account,  shall 
have  been  paid,  and  the  receipt  of  the  state  treasurer  for  such  tax  shall  be 
the  proper  voucher  for  such  payment.  (Laws  1903,  c.  171;  Eev.  Code  1905, 
sec.  8336.) 

§  992.    Jurisdiction  of  District  Court. 

Sec.  8339.  The  district  court  having  either  principal  or  ancillary  juris- 
diction of  the  settlement  of  the  estate  of  the  decedent  shall  have  jurisdiction 
to  hear  and  determine  all  questions  in  relation  to  said  tax  that  may  arise 
affecting  any  devise,  legacy  or  inheritance,  or  any  grant  or  gift,  under  this 
chapter,  subject  to  appeal  as  in  other  cases,  and  the  state  treasurer  shall 
in  his  name  of  office  represent  the  interests  of  the  state  in  any  such  pro- 
ceeding. (Laws  1903,  c.  171;  Eev.  Code  1905,  sec.  8339.) 
41 


642  INHERITANCE  TAXATION. 

CHAPTER  XLVII. 
OHIO  STATUTE. 

(General  Code  of  1910,  pp.  1148-1151.) 

§     993.  Transfers  Subject  to  Tax — Bates — Persons  Liable — Interest — Lien. 

§     994.  Exemptions  from  Tax. 

§     995.  Estates  for  Life  or  for  Years  and  Remainder. 

§     996.  Bequests  in  Lieu  of  Compensation. 

§     997.  Payment  of  Tax — Interest  and  Discount. 

§     998.  Collection  of  Tax  by  Executor. 

§     999.  Legacy  Charged  upon  Real  Estate. 

§  1000.  Gift  for  Limited  Period. 

§  1001.  Sale  of  Property  to  Pay  Tax. 

§  1002.  Inventory  and  Assessment — Duty  of  Auditor  and  Treasurer. 

§  1003.  Notice  to  Probate  Judge  of  Taxable  Transfers. 

§  1004.  Refund  of  Tax  in  Certain  Cases. 

§  1005.  Valuation  and  Appraisement  of  Property. 

§  1006.  Jurisdiction  of  Probate  Court. 

§  1007.  Statement   to   County   Auditor   of   Transfers — Record  by   Probate 

Judge. 

§  1008.  Fees  of  Officers  in  Collecting  Tax. 

§  1009.  Account  of  Executor  not  Allowed  Until  Taxes  Paid. 

§  1010.  Meaning  of  the  Word  "Property." 

§  993.  Transfers  Subject  to  Tax — Rates — Persons  Liable — Interest — Lien, 
Sec.  5331.  All  property  within  the  jurisdiction  of  this  state,  and  any 
interests  therein,  whether  belonging  to  inhabitants  of  this  state  or  not, 
and  whether  tangible  or  intangible,  which  pass  by  will  or  by  the  intestate 
laws  of  this  state,  or  by  deed,  grant,  sale  or  gift,  made  or  intended  to 
take  effect  in  possession  or  enjoyment  after  the  death  of  the  grantor,  to 
a  person  in  trust  or  otherwise,  other  than  to  or  for  the  use  of  the  father, 
mother,  husband,  wife,  brother,  sister,  niece,  nephew,  lineal  descendant, 
adopted  child,  or  person  recognized  as  an  adopted  child  and  made  a  legal 
heir  under  the  provisions  of  a  statute  of  this  state,  or  the  lineal  descendants 
thereof,  or  the  lineal  descendants  of  an  adopted  child,  the  wife  or  widow 
of  a  son,  the  husband  of  the  daughter  of  a  decedent,  shall  be  liable  to  a 
tax  of  five  per  cent  of  its  value,  above  the  sum  of  two  hundred  dollars. 
Seventy-five  per  cent  of  such  tax  shall  be  for  the  use  of  the  state,  and 
twenty-five  per  cent  for  the  use  of  the  county  wherein  it  is  collected.  All 
administrators,  executors  and  trustees,  and  any  such  grantee  under  a  con- 
veyance made  during  the  grantor's  life,  shall  be  liable  for  all  such  taxes, 
with  lawful  interest  as  hereinafter  provided,  until  they  have  been  paid, 
as  hereinafter  directed.  Such  taxes  shall  become  due  and  payable  im- 
mediately upon  the  death  of  the  decedent  and  shall  at  once  become  a  lien 
upon  the  property,  and  be  and  remain  a  lien  until  paid.  (Gen.  Code  1910, 
p.  1148.) 


OHIO  STATUTE.  643 

§  994.    Exemptions  from  Tax. 

Sec.  5332.  The  provisions  of  the  next  preceding  section  shall  not  apply 
to  property,  or  interests  in  property,  transmitted  to  the  state  of  Ohio  under 
the  intestate  laws  of  the  state,  or  embraced  in  a  bequest,  devise,  transfer 
or  conveyance  to,  or  for  the  use  of  the  state  of  Ohio,  or  to  or  for  the  use 
of  a  municipal  corporation  or  other  political  subdivision  thereof  for  ex- 
clusively public  purposes,  or  public  'institutions  of  learning,  or  to  or 
for  the  use  of  an  institution  in  this  state  for  purpose  only  of  public 
charity  or  other  exclusively  public  purposes.  The  property,  or  interests 
in  property  so  transmitted  or  embraced  in  such  devise,  bequest,  transfer 
or  conveyance  shall  be  exempt  from  all  inheritance  and  other  taxes  while 
used  exclusively  for  any  of  such  purposes.  (Gen.  Code  1910,  p.  1148.) 

§  995.    Estates  for  Life  or  for  Years  and  Remainder. 

Sec.  5333.  When  a  person  bequeaths  or  devises  property  to  or  for  the 
use  of  father,  mother,  husband,  wife,  brother,  sister,  niece,  nephew,  lineal 
descendant,  adopted  child,  the  lineal  descendant  of  an  adopted  child,  the 
wife  or  widow  of  a  son,  or  the  husband  of  a  daughter,  during  life  or  for 
a  term  of  years,  and  the  remainder  to  a  collateral  heir,  or  to  a  stranger  to 
the  blood,  the  value  of  the  prior  estate  shall  be  appraised,  within  sixty 
days  after  the  death  of  the  testator,  in  the  manner  hereinafter  provided, 
and  deducted,  together  with  the  sum  of  two  hundred  dollars,  from  the  ap- 
praised ralue  of  such  property.  (Gen.  Code  1910,  p.  1148.) 

§  996.     Bequests  in  Lieu  of  Compensation. 

Sec.  5334.  When  a  decedent  appoints  one  or  more  executors  or  trustees, 
and  instead  of  their  lawful  allowance  makes  a  bequest  or  devise  of  prop- 
erty to  them  which  would  otherwise  be  liable  to  such  tax,  or  appoints  them 
his  residuary  legatees,  and  said  bequests,  devises,  or  residuary  legacies 
exceed  what  would  be  a  reasonable  compensation  for  their  services,  such 
excess  shall  be  liable  to  such  tax,  and  the  probate  court  having  jurisdiction 
of  their  accounts  shall  fix  such  compensation.  (Gen.  Cod«  1910,  p.  1149.) 

§  997.    Payment  of  Tax — Interest  and  Discount. 

Sec.  5335.  Taxes  imposed  by  this  subdivision  of  this  chapter  shall  be 
paid  into  the  treasury  of  the  county  in  which  the  court  having  jurisdiction 
of  the  estate  or  accounts  is  situated,  by  the  executors,  administrators, 
trustees,  or  other  persons  charged  with  the  payment  thereof.  If  such  taxes 
are  not  paid  within  one  year  after  the  death  of  the  decedent,  interest  at 
the  rate  of  eight  per  cent  shall  be  thereafter  charged  and  collected  thereon, 
and  if  not  paid  at  the  expiration  of  eighteen  months  after  such  death,  the 
prosecuting  attorney  of  the  county  wherein  said  taxes  remain  unpaid,  shall 
institute  the  necessary  proceedings  to  collect  the  taxes  in  the  court  of 
common  pleas  of  the  county,  after  first  being  notified  in  writing  by  the 
probate  judge  of  the  county  of  the  nonpayment  thereof.  The  probate  judge 
shall  give  such  notice  in  writing.  If  the  taxes  are  paid  before  the  ex- 
piration of  one  year  after  the  death  of  the  decedent,  a  discount  of  one 
per  cent  per  month  for  each  full  mouth  that  payment  has  been  made  prior 


644  INHERITANCE   TAXATION. 

to  the  expiration  of  the  rear,  shall  be  allowed  on  the  amount  of  such  taxes. 
(Gen.  Code  1&10,  p.  1149.) 

§  898.    Collection  of  Tax  by  Executor. 

Sec.  5336.  An  administrator,  executor,  or  trustee,  having  in  charge,  or 
trust,  property  subject  to  such  law,  shall  deduct  the  tax  therefrom,  or  col- 
lect the  tax  thereon  from  the  legatee  or  person  entitled  to  the  property. 
He  shall  not  deliver  any  specific  legacy  or  property  subject  to  such  tax  to 
any  person  until  he  has  collected  the  tax  thereon.  (Gen.  Code  1910,  p.  1149.) 

§  999.    Legacy  Charged  upon  Real  Estate. 

Sec.  5337.  When  a  legacy  subject  to  such  tax  is  charged  upon  or  payable 
out  of  real  estate,  the  hedj  or  devisee,  before  paying  it,  sihall  deduct 
the  tax  therefrom  and  pay  it  to  the  executor,  administrator,  or  trustee, 
and  the  tax  shall  remain  a  charge  upon  the  real  estate  until  it  is  paid. 
Payment  thereof  shall  be  enforced  by  the  executor,  administrator,  or  trustee, 
iu  like  manner  as  the  payment  of  the  legacy  itself  could  be  enforced.  (Gen. 
Code  1910,  p.  1149.) 

§  1000.     Gift  for  Limited  Period. 

Sec.  5338.  If  such  legacy  is  given  in  money  to  a  person  for  a  limited 
period,  such  administrator,  executor  or  trustee  shall  retain  the  tax  on  the 
whole  amount.  If  it  is  not  in  money,  he  shall  make  an  application  to  the 
court  having  jurisdiction  of  his  accounts  to  make  an  apportionment,  if  the 
case  require  it,  of  the  sum  to  be  paid  into  his  hands  by  such  legatee  on 
account  of  the  tax  and  for  such  further  order  as  the  case  may  require. 
(Gen.  Code  1910,  p.  1149.) 

§  1001.    Sale  of  Property  to  Pay  Tax. 

Sec.  5339.  Administrators,  executors  and  trustees  may  sell  so  much  of 
the  estate  of  the  deceased  as  will  enable  them  to  pay  said  tax  in  like 
manner  as  they  are  empowered  to  do  for  the  payment  of  his  debts.  (Gen. 
Code  1910,  p.  1149.) 

§  1002.    Inventory  and  Assessment — Duty  of  Auditor  and  Treasurer. 

Sec.  5340.  Within  ten  days  after  the  filing  of  the  inventory  of  every 
such  estate,  any  part  of  which  may  be  subject  to  a  tax  under  the  provisions 
of  this  subdivision  of  this  chapter,  the  judge  of  the  probate  court,  in  which 
such  inventory  is  filed,  shall  make  and  deliver  to  the  county  auditor  of 
such  county  a  copy  of  the  inventory;  or,  if  it  can  be  conveniently  separated, 
a  copy  of  such  part  of  the  estate,  with  the  appraisal  thereof.  The  auditor 
shall  certify  the  value  of  the  estate,  subject  to  taxation  hereunder  and  the 
amount  of  taxes  due  therefrom,  to  the  county  treasurer,  who  shall  collect 
such  taxes,  and  thereupon  place  twenty-five  per  cent  thereof  to  the  credit 
of  the  county  expense  fund,  and  pay  seventy-five  per  cent  thereof  into 
the  sta,te  treasury,  to  the  credit  of  the  general  revenue  fund,  at  the  time 
of  making  his  semi-annual  settlement.  (Gen.  Code  1910,  p.  1150.) 


OHIO  STATUTE.  645 

§  1003.    Notice  to  Probate  Judge  of  Taxable  Transfers. 

Sec.  5341.  When  any  of  the  real  estate  of  a  decedent  passes  to  another 
person  so  as  to  become  subject  to  such  tax,  the  executor,  administrator  or 
trustee  of  the  decedent  shall  inform  the  probate  judge  thereof  within  six 
months  after  he  had  assumed  the  duties  of  his  trust,  or  if  the  fact  is  not 
known  to  him  within  that  time,  then  within  one  month  from  the  time  that 
it  does  become  so  known  to  him.  (Gen.  Code  1910,  p.  1150.) 

§  1004.    Refund  of  Tax  in  Certain  Cases. 

Sec.  5342.  When  for  any  reason  the  devisee,  legatee  or  heir  who  has 
paid  such  tax  relinquishes  or  reconveys  a  portion  of  the  property  on 
which  it  was  paid,  or  it  is  judicially  determined  that  the  whole  or  part 
of  such  tax  ought  not  to  have  been  paid,  the  tax,  or  the  due  proportional 
part  thereof  shall  be  repaid  to  him  by  the  executor,  administrator  or  trustee. 

(Gen.  Code  1910,  p.  1150.) 

• 

§  1005.    Valuation  and  Appraisement  of  Property. 

Sec.  5343.  The  value  of  such  property,  subject  to  said  tax,  shall  be 
its  actual  market  value  as  found  by  the  probate  court.  If  the  state, 
through  the  prosecuting  attorney  of  the  proper  county,  or  any  person  in- 
terested in  the  succession  to  the  property,  applies  to  the  court,  it  shall 
appoint  three  disinterested  persons,  who,  being  first  sworn,  shall  view  and 
appraise  such  property  at  its  actual  market  value  for  the  purposes  of 
this  tax,  and  make  return  thereof  to  the  court.  The  return  may  be  ac- 
cepted by  the  court  in  a  like  manner  as  the  original  inventory  of  the  estate 
is  accepted,  and  if  so  accepted,  it  shall  be  binding  upon  the  person  by 
whom  this  tax  is  to  be  paid,  and  upon  the  state.  The  fees  of  the  ap- 
praisers shall  be  fixed  by  the  probate  judge  and  paid  out  of  the  county 
treasury  upon  the  warrant  of  the  county  auditor.  In  case  of  an  annuity 
or  life  estate,  the  value  thereof  shall  be  determined  by  the  so-called  actuaries' 
combined  experience  tables  and  five  per  cent  compound  interest.  (Gen. 
Code  1910,  p.  1150.) 

§  1006.    Jurisdiction  of  Probate  Court. 

Sec.  5344.  The  probate  court,  having  either  principal  or  auxiliary  juris- 
diction of  the  settlement  of  the  estate  of  the  decedent,  shall  have  juris- 
diction to  hear  and  determine  all  questions  in  relation  to  such  tax  that 
arise,  affecting  any  devise,  legacy  or  inheritance  under  this  subdivision 
of  this  chapter,  subject  to  appeal  as  in  other  cases,  and  the  prosecuting 
attorney  shall  represent  the  interests  of  the  state  in  such  proceedings. 
(Gen.  Code  1910,  p.  1150.) 

§  1007.     Statement  to   County  Auditor   of  Transfers — Record  "by  Probate 

Judge. 

Sec.  5345.  Each  probate  judge,  at  least  once  in  six  months,  shall  render 
to  the  county  auditor  a  statement  of  the  property  within  the  jurisdiction 
of  his  court  that  has  become  subject  to  such  tax  during  such  period,  the 
number  and  amount  of  such  taxes  as  will  accrue  during  the  next  six  months, 


646  INHERITANCE  TAXATION. 

so  far  as  they  can  be  determined  from  the  probate  records,  and  the  number 
and  amount  thereof  due  and  unpaid.  Each  probate  judge  shall  keep  a 
separate  record,  in  a  book  to  be  provided  for  that  purpose,  of  all  cases 
arising  under  the  provisions  of  this  subdivision  of  this  chapter.  (Gen. 
Code  1910,  p.  1151.) 

§  1008.    Fees  of  Officers  in  Collecting  Tax. 

Sec.  5346.  The  fees  of  officers  having  duties  to  perform  under  the  pro- 
visions of  this  subdivision  of  this  chapter,  shall  be  paid  by  the  county 
from  the  county  expense  fund  thereof,  and  shall  be  the  same  as  allowed 
by  law  for  similar  services.  In  ascertaining  the  amounts  due  the  state, 
seventy-five  per  cent  of  the  cost  of  collection  and  other  necessary  and 
legitimate  expenses  incurred  by  the  county  in  the  collection  of  such  taxes, 
shall  be  charged  to  the  state  and  deducted  from  the  amount  of  taxes  to 
be  paid  into  the  state  treasury.  (Gen.  Code  1910,  p.  1151.) 

• 

§  1009.    Account  of  Executor  not  Allowed  Until  Taxes  Paid. 

Sec.  5347.  A  final  settlement  of  the  account  of  an  executor,  administrator 
or  trustee  shall  not  be  accepted  or  allowed  by  the  probate  court  unless  it 
shows,  and  the  judge  of  that  court  finds,  that  all  taxes  imposed  by  the  pro- 
visions of  this  subdivision  of  this  chapter,  upon  any  property  or  interest 
therein,  belonging  to  the  estate  to  be  settled  by  such  account,  have  been 
paid.  The  receipt  of  the  county  treasurer  shall  be  the  proper  voucher  for 
such  payment.  (Gen.  Code  1910,  p.  115.) 

§  1010.    Meaning  of  the  Word  "Property." 

Sec.  5348.  The  word  "property"  as  used  in  this  subdivision  of  this  chapter 
includes  real  and  personal  estate,  any  form  of  interest  therein,  and  an- 
nuities. (Gen.  Code  1910,  p.  1151.) 


OKLAHOMA  STATUTE.  647 


CHAPTER  XLVIII. 
OKLAHOMA  STATUTE. 

(Laws  of  1907-08,  pp.  733-748;  Compiled  Laws  of  1909,  pp.  1549-1558.) 

I  1011.  Transfers  Subject  to  Tax — Market  Value  of  Property. 

§  1012.  Kate  of  Taxation  in  Certain  Cases. 

§  1013.  Rate  of  Taxation  in  Other  Cases. 

§  1014.  Exemptions  from  Tax. 

§  1015.  Lien  of  Tax — Payment — Receipts. 

§  1016.  Interest  and  Discount. 

§  1017.  Collection  of  Tax  by  Executor — Sale  of  Property. 

§  1018.  Refunding  Tax  Paid. 

§  1019.  Bond  to  Secure  Deferred  Payments. 

§  1020.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  1021.  Transfer  of  Stock  or  Obligations  by  Foreign  Executor — Notice. 

§  1022.  Jurisdiction  of  County  Court. 

§  1023.  Appointment  of  Appraisers  and  Valuation  of  Property. 

§  1024.  Proceedings  by  Appraiser — Compensation. 

§  1025.  Report  of  Appraiser. 

§  1026.  Duty  of  Insurance  Commissioner. 

§  1027.  Duty  of  State  Auditor. 

§  1028.  Guardian  of  Person  Under  Disability — Reappraisemeat. 

§  1029.  Procedure  to  Enforce  Unpaid  Tax. 

§  1030.  Books  to  be  Furnished  by  State  Auditor. 

S  1031.  Report  of  County  Judge. 

§  1032.  Report  of  County  Treasurer. 

§  1033.  Extensions  and  Compromise  by  County  Treasurer. 

§  1034.  Receipts  and  Their  Registration. 

§  1035.  Disposition  of  Revenue. 

S  1036.  Interpretation  of  Words  Used  in  Statute. 

§  1011.    Transfers  Subject  to  Tax— Market  Value  of  Property. 

Sec.  7712.  A  tax  shall  be  and  is  hereby  imposed  upon  eay  transfer  of  any 
property,  real,  personal,  or  mixed,  or  any  interest  therein,  or  income  therefrom 
in  trust  or  otherwise,  to  any  person,  association,  or  coiporation,  except  corpora- 
tions of  this  state  organized  under  its  laws  solely  for  religious,  charitable,  or 
educational  purposes,  which  shall  use  the  property  so  transferred  exclusively 
for  the  purposes  of  their  organization  within  this  state  in  the  following  cases: 
When  th«  transfer  is  by  will  or  by  the  intestate  laws  of  this  state  from  any 
person  dying  possessed  of  the  property  while  a  resident  of  the  state.  When 
a  transfer  is  by  will  or  intestate  law,  of  property  within  the  state  or  within 
its  jurisdiction  and  the  decedent  was  a  nonresident  of  the  state  at  the  time  of 
his  death.  When  the  transfer  is  of  property  made  by  a  resident  or  by  a  non- 
resident, when  such  nonresident's  property  is  within  this  state  or  within  its 
jurisdiction,  bj  deed,  grant,  bargain,  sale,  or  gift,  made  in  contemplation  of 


648  INHERITANCE  TAXATION. 

the  death  of  the  grantor,  vendor,  or  donor,  or  intended  to  take  effect  in  pos- 
session or  enjoyment  at  or  after  such  death.  Such  tax  shall  be  imposed  when 
any  such  person  or  corporation  becomes  beneficially  entitled,  in  possession  or 
expectancy  to  any  property  or  the  income  thereof,  by  any  such  transfer  whether 
made  before  or  after  the  passage  of  this  act;  provided,  that  property  or  estates 
which  have  vested  in  such  persons  or  corporations  before  this  act  takes  effect 
shall  not  be  subject  to  the  tax.  Whenever  any  person  or  corporation  shall 
exercise  a  power  of  appointment  derived  from  any  disposition  of  property  made 
either  before  or  after  the  passage  of  this  act,  such  appointment,  when  made 
shall  be  deemed  a  transfer  taxable  under  the  provisions  of  this  act  in  the 
same  manner  as  though  the  property  to  which  such  appointment  relates  be- 
longed absolutely  to  the  donee  of  such  power  and  had  been  bequeathed  or 
devised  by  such  donee  by  will;  and  whenever  any  person  or  corporation  pos- 
sessing such  power  of  appointment  so  derived  shall  omit  or  fail  to  exercise  the 
same  within  the  time  provided  therefor,  in  whole  or  in  part,  a  transfer  taxable 
under  the  provisions  of  this  act  shall  be  deemed  to  take  place  to  the  extent  of 
such  omission  or  failure,  in  the  same  manner  as  though  the  persons  or  corpora- 
tions thereby  becoming  entitled  to  the  possession  or  enjoyment  of  the  property 
to  which  such  power  related  had  succeeded  thereto  by  a  will  of  the  donee  of 
the  power  failing  to  exercise  such  power,  taking  effect  at  the  time  of  such 
omission  or  failure.  The  tax  so  imposed  shall  be  upon  the  clear  market  value 
of  such  property  at  the  rates  hereinafter  prescribed,  and  only  upon  the  excess 
of  the  exemptions  hereinafter  granted.  (Laws  1907-08,  p.  733;  Comp.  Laws 
1909,  p.  1549.) 

§  1012.    Bate  of  Taxation  In  Certain  Cases. 

See.  7713.  When  the  property  or  any  beneficial  interest  therein  passes  by 
any  such  transfer,  where  the  amount  of  the  property  shall  exceed  in  value  the 
exemptions  hereinafter  specified,  the  primary  rates  of  taxation  hereinafter 
imposed  shall  apply  as  follows: 

On  the  first  five  thousand  dollars  of  such  excess  in  class  one;  on  first  two 
thousand  dollars  of  such  excess  in  classes  two  and  three;  on  the  first  five  hun- 
dred dollars  of  such  excess  in  classes  four  and  five  and  shall  be: 

Class  1.  Where  the  person  or  persons  entitled  to  any  beneficial  interest  in 
such  property  shall  be  the  husband,  wife,  lineal  issue,  lineal  ancestors  of  the 
decedent  or  any  child  adopted  as  such  in  conformity  with  the  laws  of  this 
state,  or  any  child  to  whom  such  decedent  for  not  less  than  ten  years  prior 
to  such  transfer  stood  in  the  mutually  acknowledged  relation  of  a  parent; 
provided,  however,  such  relationship  began  at  or  before  the  child's  fifteenth 
birthday,  and  was  continuous  for  said  ten  years  thereafter,  or  any  lineal  issue 
of  such  adopted  or  mutually  acknowledged  child,  at  the  rate  of  one  per  centum 
of  the  clear  value  of  such  interest  in  such  property. 

Class  2.  Where  the  person  or  persons  entitled  to  any  beneficial  interest  in 
such  property  shall  be  the  brother  or  sister  of  a  descendant  of  a  brother  or 
sister  of  the  decedent,  a  wife  or  widow  of  a  son  or  the  husband  of  a  daughter 
of  the  decedent,  at  the  rate  of  one  and  one-half  per  centum  of  the  clear  value 
of  such  interest  in  such  property. 


OKLAHOMA  STATUTE.  649 

Class  3.  Where  the  person  or  persons  entitled  to  any  beneficial  interest  in 
such  property  shall  be  the  brother  or  sister  of  the  father  or  mother,  or  a 
descendant  of  a  brother  or  sister  of  the  father  or  mother  of  the  decedent,  at 
the  rate  of  three  per  centum  of  the  clear  value  of  such  interest  in  such 
property. 

Class  4.  Where  the  person  or  persons  entitled  to  any  beneficial  interest  in 
such  property  shall  be  the  brother  or  sister  of  the  grandfather  or  grandmother 
or  a  descendant  of  the  brother  or  sister  of  the  grandfather  or  grandmother  of 
the  decedent,  at  the  rate  of  four  per  centum  of  the  clear  value  of  such  in- 
terest in  such  property. 

Class  5.  Where  the  person  or  persons  entitled  to  any  beneficial  interest  in 
such  property  shall  be  in  any  other  degree  of  collateral  consanguinity  than  is 
hereinbefore  stated,  or  shall  be  a  stranger  in  blood  to  the  decedent,  or  sh'all 
be  a  body  politic,  or  corporate,  at  the  rate  of  five  per  centum  of  the  clear 
value  of  such  interest  in  such  property.  (Laws  1907-08,  p.  734;  Comp.  Laws 
1909,  p.  1550.) 

§  1013.    Rate  of  Taxation  in  Other  Cases. 

Sec.  7714.  The  foregoing  rates  in  section  7713  are  for  convenience  termed 
the  primary  rates.  Upon  all  in  excess  of  five  thousand  dollars  in  class  one, 
the  primary  rate  provided  for  herein  shall  be  increased  one  one  hundred 
twenty-fifth  (1/125)  of  one  per  centum  for  every  one  hundred  dollars  increase 
in  valuation  of  such  excess.  Upon  all  in  excess  of  two  thousand  dollars  in 
classes  two  and  three  the  primary  rate  provided  for  herein  shall  be  increased 
one-fiftieth  of  one  per  centum  for  every  one  hundred  dollars  increase  in  valua- 
tion of  such  excess.  Upon  all  in  excess  of  five  hundred  dollars  in  classes  four 
and  five,  the  primary  rate  provided  for  herein  shall  be  increased  one-tenth  of 
one  per  centum  for  every  one  hundred  dollars  increase  in  valuation  for  such 
excess.  (Laws  1907-08,  p.  735;  Comp.  Laws  1909,  p.  1550.) 

§  1014.    Exemptions   from   Tax. 

Sec.  7715.     The  following  exemptions  from  the  tax  are  hereby  allowed: 

All  property  transferred  to  corporations  of  this  state  organized  under  its 
laws  solely  for  religious,  charitable,  or  educational  purposes  which  shall  use 
the  property  so  transferred  exclusively  for  the  purposes  of  their  organization 
within  the  state  shall  be  exempt. 

Property  of  the  clear  value  of  ten  thousand  dollars  transferred  to  the  widow 
of  the  decedent,  and  five  thousand  dollars  transferred  to  each  of  the  other 
persons  described  in  the  first  division  of  section  7713,  shall  be  exempt. 

Property  of  the  clear  value  of  five  hundred  dollars,  transferred  to  each 
of  the  persons  described  in  the  second  subdivision  of  section  7713,  shall  be 
exempt. 

Property  of  the  clear  value  of  two  hundred  and  fifty  dollars,  transferred 
to  each  of  the  persons  described  in  the  third  subdivision  of  section  7713,  shall 
be  exempt. 

Property  of  the  clear  value  of  one  hundred  and  fifty  dollars,  transferred 
to  each  of  th«  persona  described  in  the  fourth  subdivision  of  section  7713,  shall 
be  exempt. 


650  INHERITANCE  TAXATION. 

Property  of  the  clear  value  of  one  hundred  dollars,  transferred  to  each  of 
the  persons  and  corporations  as  described  in  the  fifth  subdivision  of  section 
7713,  shall  be  exempt.  (Laws  1907-08,  p.  736;  Corap.  Laws  1909,  p.  1551.) 

§  1015.    Lien  of  Tax — Payment — Receipts. 

Sec.  7716.  Every  such  tax  shall  be  and  remain  a  lien  upon  the  property 
transferred  until  paid  and  the  person  to  whom  the  property  is  so  transferred 
and  the  administrators,  executors,  and  trustees  of  every  estate  so  transferred, 
shall  be  personally  liable  for  such  tax  until  its  payment.  The  tax  shall  be 
paid  to  the  treasurer  of  the  county  in  which  the  county  court  is  situated  having 
jurisdiction  as  herein  provided;  and  said  treasurer  shall  give,  and  every 
executor,  administrator,  or  trustee  shall  take  duplicate  receipts  from  him  of 
such  payments,  one  of  which  he  shall  immediately  send  to  the  state  auditor, 
whose  duty  it  shall  be  to  charge  the  treasurer  so  receiving  the  tax  with  the 
amount  thereof,  and  to  seal  said  receipt  with  the  seal  of  his  office,  and 
countersign  the  same  and  return  it  to  the  executor,  administrator  or  trustee, 
whereupon  it  shall  be  a  proper  voucher  in  the  settlement  of  his  accounts;  but 
no  executor,  administrator,  or  trustee  shall  be  entitled  to  a  final  accounting  of 
an  estate,  in  settlement  of  which  a  tax  is  d<ue  under  the  provisions  of  this 
act,  unless  he  shall  .produce  a  receipt  so  sealed  and  countersigned  by  the  state 
auditor  or  a  copy  thereof  certified  by  him,  or  unless  a  bond  shall  have  been 
filed,  as  prescribed  by  section  7720.  All  taxes  imposed  by  this  act  shall  be  due 
and  payable  at  the  time  of  the  transfer  except  as  hereinafter  provided.  Taxes 
upon  the  transfer  of  any  estate,  property,  or  interest  therein,  limited,  condi- 
tioned, dependent,  or  determinable  upon  the  happening  of  any  contingency  or 
future  event,  by  reason  of  which  the  fair  market  value  thereof  cannot  be 
ascertained  at  the  time  of  the  transfer,  as  herein  provided,  shall  accrue  and 
become  due  and  payable  when  the  beneficiaries  shall  come  into  afetual  posses- 
sion or  enjoyment  thereof.  (Laws  1907-08,  p.  736;  Comp.  Laws  1909,  p. 
1551.) 

§  1016.    Interest   and   Discount 

Sec.  7717.  If  such  tax  is  paid  within  one  year  from  the  accruing  thereof, 
a  discount  of  five  per  centum  shall  be  allowed  and  deducted  therefrom.  If 
such  tax  is  not  paid  within  eighteen  months  from  the  accruing  thereof,  interest 
shall  be  charged  and  collected  thereon  at  the  rate  of  ten  per  centum  per 
annum  from  the  time  the  tax  accrued;  unless  by  reason  of  claims  made  upon 
the  estate,  necessary  litigation,  or  other  unavoidable  cause  of  delay,  such  tax 
shall  not  be  determined  and  paid  as  herein  provided,  until  the  cause  of  such 
delay  is  removed,  after  which  ten  per  centum  shall  be  charged.  In  all  cases 
where  a  bond  shall  be  given  under  the  provisions  of  section  7720,  interest  shall 
be  charged  at  the  rate  of  six  per  centum  from  the  accrual  of  the  tax,  until 
the  date  of  payment  thereof.  (Laws  1907-08,  p.  737;  Comp.  Laws  1909,  p. 
1551.) 

§  1017.    Collection  of  Tax  by  Executor — Sale  of  Property. 

Sec.  7718.  Every  executor,  administrator,  or  trustee  shall  have  full  power 
to  sell  so  much  of  the  property  of  the  decedent  as  will  enable  him  to  pay  such 


OKLAHOMA  STATUTE.  651 

tax  in  the  same  manner  as  he  might  be  entitled  by  law  to  do  for  the  payment 
of  the  debts  of  the  testator,  or  intestate.  Any  such  administrator,  executor, 
or  trustee  having  in  charge  or  in  trust,  any  legacy  or  property  for  distribu- 
tion, subject  to  such  tax,  shall  deduct  the  tax  therefrom;  and  within  thirty 
days  therefrom  shall  pay  over  the  same  to  the  county  treasurer,  as  herein 
provided.  If  such  legacy  or  property  be  not  in  money,  he  shall  collect  the  tax 
thereon  upon  the  appraised  value  thereof,  from  the  person  entitled  thereto. 
H«  shall  not  deliver  or  be  compelled  to  deliver  any  specific  legacy  or  property 
subject  to  tax  under  this  act,  to  any  person  until  he  shall  have  collected  the 
tax  thereon.  If  any  such  legacy  shall  be  charged  upon  or  payable  out  of  real 
property,  the  heir,  or  devisee,  shall  deduct  such  tax  therefrom  and  pay  it  to  the 
administrator,  executor,  or  trustee,  and  the  tax  shall  remain  a  lien  or  charge 
on  such  real  property  until  paid,  and  the  payment  thereof  shall  be  enforced 
by  the  executor,  administrator,  or  trustee,  in  the  same  manner  that  payment  of 
the  legacy  might  be  enforced,  or  by  the  county  attorney  under  section  7730.  If 
any  such  legacy  shall  be  given  in  money  to  any  such  person  for  a  limited  period, 
the  administrator,  executor,  or  trustee  shall  retain  the  tax  upon  the  whole 
amount,  but  if  it  be  not  in  money,  he  shall  make  application  to  the  court 
having  jurisdiction  of  an  accounting  by  him  to  make  an  apportionment  if  the 
case  require  it,  of  the  sum  to  be  paid  into  his  hands  by  such  legatees,  and 
for  such  further  order  relative  thereto  as  the  case  may  require.  (Laws 
1907-08,  p.  737;  Comp.  Laws  1909,  p.  1552.) 

§  1018.    Refunding  Tax  Paid. 

Sec.  7719.  If  any  debt  shall  be  proved  against  the  estate  of  the  decedent 
after  the  payment  of  any  legacy,  or  distributive  share  thereof,  from  which 
any  such  tax  has  been  deducted,  or  upon  which  it  has  been  paid  by  the  person 
entitled  to  such  legacy  or  distributive  share,  and  such  person  is  required  by 
the  order  of  the  county  court  having  jurisdiction  thereof  on  notice  to  the  state 
auditor  to  refund  the  amount  of  such  debts  or  any  part  thereof,  an  equitable 
proportion  of  the  tax  shall  be  repaid  to  him  by  the  executor,  administrator  or 
trustee,  if  the  tax  has  not  been  paid  to  the  county  treasurer,  or  repaid  by 
such  treasurer,  or  state  treasurer,  if  such  tax  has  been  paid  to  him.  When 
any  amount  of  said  tax  shall  have  been  paid  erroneously  into  the  state  treasury, 
it  shall  be  lawful  for  the  state  auditor,  upon  satisfactory  proofs  presented  to 
him  of  the  facts,  to  require  the  amount  of  such  erroneous  or  illegal  payment 
to  be  refunded  to  the  executor,  administrator,  trustee,  person  or  persons  who 
have  paid  any  such  tax  in  error,  from  the  treasury;  or  the  said  state  auditor 
may  order,  direct  and  allow  the  treasurer  of  any  county  to  refund  the  amount 
of  any  illegal  or  erroneous  payment  of  such  tax  out  of  the  funds  in  his  hands 
or  custody  to  the  credit  of  such  taxes,  and  credit  him  with  the  same  in  his 
quarterly  account  rendered  to  the  state  auditor  under  this  act.  Provided, 
however,  that  all  applications  for  such  refunding  of  erroneous  taxes  shall  be 
made  within  one  year  from  the  payment  thereof,  or  within  one  year  after  the 
reversal  or  modification  of  the  order  fixing  such  tax.  (Laws  1907-08,  p.  738; 
Comp.  Laws  1909,  p.  1552.) 


652  INHERITANCE  TAXATION. 

§  1019.    Bond  to  Secure  Deferred  Payments. 

Sec.  7720.  Any  beneficiary  of  any  property  chargeable  with  a  tax  under 
this  act,  and  any  executors,  administrators  and  trustees  thereof,  may  elect, 
within  eighteen  months  from  the  date  of  the  transfer  thereof  as  herein  pro- 
vided, not  to  pay  such  tax  until  the  person  or  persons  beneficially  interested 
therein  shall  come  into  the  actual  possession  or  enjoyment  thereof.  The  per- 
son or  persons  BO  electing  shall  give  a  bond  to  the  state  in  a  penalty  of  three 
times  the  amount  of  any  such  tax,  with  such  securities  as  the  county  court  of 
the  proper  county  may  approve,  conditioned  for  the  payment  of  such  tax  and 
interest  thereon  at  such  time  or  period  as  the  person  or  persons  beneficially 
interested  therein  may  come  into  the  actual  possession  or  enjoyment  of  such 
property,  which  bond  shall  b«  filed  in  the  county  court.  Such  bond  must  be 
executed  and  filed  and  a  full  return  of  such  property  upon  oath  made  to  the 
county  court  within  one  year  from  the  date  of  such  transfer  thereof  as  herein 
provided,  and  such  bond  must  be  renewed  when  ordered  by  the  court.  (Laws 
1907-08,  p.  739;  Comp.  Laws  1909,  p.  1552.) 

§  1020.    Bequest  to  Executor  in  Lieu  of  Compensation. 

Sec.  7721.  If  a  testator  bequeaths  property  to  one  or  more  executors  or 
trustees  in  lieu  of  their  commissions  or  allowances,  or  makes  them  his  legatees 
to  any  amount  exceeding  the  commission  or  allowance  prescribed  by  law  for 
an  executor  or  trustee,  the  excess  in  value  of  the  property  so  bequeathed,  above 
the  amount  of  commissions  or  allowances  prescribed  by  law  in  similar  cases, 
shall  be  taxable  by  this  act.  (Laws  1907-08,  p.  739 ;  Comp.  Laws  1909,  p. 
1553.) 

§  1021.    Transfer  of  Stock  or  Obligations  by  Foreign  Executor — Notice. 

Sec.  7722.  If  a  foreign  executor,  administrator  or  trustee  shall  assign  or 
transfer  asny  stock  or  obligations  in  this  state  standing  in,  the  name  of  a  dece- 
dent or  in  trust  for  a  decedent,  liable  to  any  such  tax,  the  tax  shall  be  paid 
to  the  treasurer  of  the  proper  county  or  the  state  auditor  on  the  transfer 
thereof.  No  safe  deposit  company,  bank  or  other  institution,  person  or  persons 
holding  securities  or  assets  of  a  decedent,  shall  deliver  or  transfer  the  same 
to  the  executors,  administrators,  or  legal  representatives  of  said  decedent,  or 
upon  their  order  or  request  unless  notice  of  the  time  and  place  of  such  in- 
tended transfer  be  served  upon  the  state  auditor  at  least  ten  days  prior  to  the 
said  transfer;  nor  shall  any  such  safe  deposit  company,  bank  or  other  institu- 
tion, person  or  persons  deliver  or  transfer  any  securities  or  assets  of  the  estate 
of  a  nonresident  decedent  without  retaining  a  sufficient  portion  or  amount 
thereof  to  pay  any  tax  which  may  thereafter  be  assessed  on  account  of  the 
transfer  of  such  securities  or  assets  iinder  the  provisions  of  this  act,  unless 
the  state  auditor  consents  thereto  in  writing;  and  it  shall  be  lawful  for  the 
said  county  treasurer  or  state  auditor  personally  or  by  representative  to  ex- 
amine said  securities  or  assets  at  the  time  of  such  delivery  or  transfer.  Failure 
to  serve  such  notice  or  to  allow  such  examination  or  to  retain  a  sufficient 
portion  or  amount  to  pay  such  tax  as  herein  provided,  shall  render  said  safe 
deposit  company,  trust  company,  bank  or  other  institution,  person  or  persons, 
liable  to  the  payment  of  the  tax  due  upon  said  securities  or  assets  in  pursu- 


OKLAHOMA  STATUTE.  653 

ance  of  the  provisions  of  this  act.     (Laws  1907-08,  p.  739;  Comp.  Laws  1909, 
p.  1553.) 

§  1022.    Jurisdiction  of  County  Court. 

Sec.  7723.  The  county  court  of  every  county  of  the  state  having  jurisdic- 
tion to  grant  letters  testamentary  or  of  administration  upon  the  estate  of  a 
decedent  whose  property  is  chargeable  with  any  tax  under  this  act,  or  to 
appoint  a  trustee  of  such  estate  or  any  part  thereof,  or  to  give  ancillary  letters 
thereon,  shall  have  jurisdiction  to  hear  and  determine  all  questions  arising 
under  the  provisions  of  this  act,  and  to  do  any  act  in  relation  thereto  au- 
thorized by  law  to  be  done  by  a  county  court  in  other  matters  or  proceedings 
coming  within  its  probate  jurisdiction.  Every  petition  for  ancillary  letters 
testamentary  or  ancillary  letters  of  administration,  made  in  pursuance  of  the 
laws  governing  probate  practice  of  a  person  to  be  cited  as  therein  prescribed, 
and  a  true  and  correct  statement  of  all  the  decedent's  property  in  this  state, 
and  the  value  thereof;  and  upon  presentation  thereof  the  county  court  shall 
issue  a  citation  directed  to  such  county  treasurer,  and  upon  the  return  of  the 
citation,  the  county  court  shall  determine  the  amount  of  the  tax  which  may 
be  or  become  due  under  the  provision  of  this  act,  and  his  decree  awarding  the 
letters  may  contain  any  provisions  for  the  payment  of  such  tax  or  the  giving 
of  security  therefor,  which  might  be  made  by  such  county  court  if  the  county 
treasurer  were  a  creditor  of  deceased.  (Laws  1907-08,  p.  740;  Comp.  Laws 
1909,  p.  1553.) 

§  1023.    Appointment  of  Appraisers  and  Valuation  of  Property. 

Sec.  7724.  The  county  court  upon  the  application  of  any  interested  party, 
including  the  state  auditor,  county  treasurer,  or  upon  his  own  motion,  shall  as 
often  as,  and  whenever  occasion  may  require,  appoint  a  competent  person  as 
appraiser  to  fix  the  fair  market  value  at  the  time  of  transfer  thereof  of  the 
property  of  persons  whose  estates  shall  be  subject  to  the  payment  of  any  tax 
imposed  by  this  act. 

Whenever  a  transfer  of  property  is  made  upon  which  there  is,  or  in  any 
contingency  there  may  be,  a  tax  imposed,  such  property  shall  be  appraised  at 
its  clear  market  value  immediately  "upon  the  transfer  or  as  soon  thereafter 
as  practicable.  The  value  of  every  future  or  limited  estate,  income,  interest 
or  annuity  dependent  upon  life  or  lives  in  being,  shall  be  determined  by  the 
rule,  method  and  standard  of  mortality  and  value  employed  by  the  commis- 
sioner of  insurance  in  ascertaining  the  value  of  policies  of  life  insurance,  and 
annuities  for  the  determination  of  liabilities  of  life  insurance  companies,  except 
that  the  rate  of  interest  for  making  such  computation  shall  be  five  per  centum 
per  annum. 

In  estimating  the  value  of  any  estate,  or  interest  in  property  to  the  bene- 
ficial enjoyment  or  possession  whereof  there  are  persons  or  corporations 
presently  entitled  thereto,  no  allowance  shall  be  made  in  respect  of  any  con- 
tingent encumbrance  thereon,  nor  in  respect  of  any  contingency  upon  the 
happening  of  which  the  estate  or  property  or  some  part  thereof,  or  interest 
therein,  might  be  abridged,  defeated  or  diminished ;  provided,  however,  that 
in  the  event  of  such  encumbrance  taking  effect  as  an  actual  burden  upon  the 


654  INHERITANCE  TAXATION. 

interest  of  the  beneficiary,  or  in  the  event  of  the  abridgment,  defeat  or 
diminution  of  such  estate  or  property  or  interest  therein  as  aforesaid,  a  return 
shall  be  made  to  the  person  properly  entitled  thereto  of  a  proportionate 
amount  of  such  tax  in  respect  to  the  amount  or  value  of  the  encumbrance 
when  taking  effect,  or  so  much  as  will  reduce  the  same  to  the  amount  which 
would  have  been  assessed  in  respect  of  the  actual  duration  or  extent  of  the 
estate  or  interest  enjoyed.  Such  return  of  tax  shall  be  made  in  the  manner 
provided  in  section  7719. 

Where  any  property  shall  after  the  passage  of  this  act  be  transferred  sub- 
ject to  any  charge,  estate,  or  interest  determinable  by  the  death  of  any  person, 
or  at  any  period  ascertainable  only  by  reference  to  death,  the  increase  of 
benefit  accruing  to  any  person  or  corporation  upon  extinction  or  determina- 
tion of  such  charge,  estate  or  interest,  shall  be  deemed  a  transfer  of  property 
taxable  under  the  provisions  of  this  act  in  the  same  manner  as  though  the 
person  or  corporation  beneficially  entitled  thereto  had  then  acquired  such  in- 
crease of  benefit  from  the  person  from  whom  the  title  to  their  respective  estates 
or  interests  is  derived. 

When  property  is  transferred  in  trust  or  otherwise,  and  the  rights,  interests 
or  estates  of  the  transferees  are  dependent  upon  contingencies  or  conditions 
whereby  they  may  be  wholly  or  in  part  created,  defeated,  extended  or  abridged, 
a  tax  shall  be  imposed  upon  such  transfer  at  the  highest  rate  which,  on  the 
happening  of  any  of  the  said  contingencies  or  conditions,  would  be  possible 
under  the  provisions  of  this  act,  and  such  tax  so  imposed  shall  be  due  and 
payable  forthwith  out  of  the  property  transferred,  provided,  however,  that  on 
the  happening  of  any  contingency  whereby  the  said  property  or  any  part 
thereof  is  transferred  to  a  person  or  corporation  exempt  from  taxation  under 
the  provisions  of  this  act  or  to  a  person  taxable  at  a  less  rate  than  the  rate 
imposed  and  paid,  such  person  or  corporation  shall  be  entitled  to  a  return  of 
so  much  of  the  tax  imposed  and  paid  as  is  the  difference  between  the  amount 
paid  and  the  amount  which  said  person  or  corporation-  should  pay  under  the 
provisions  of  this  act  with  legal  interest  from  the  time  of  payment.  Such 
return  of  overpayment  shall  be  made  in  the  manner  provided  by  section  7719. 

Estates  in  expectancy  which  are  contingent  or  defeasible  and  in  which  pro- 
ceedings for  the  determination  of  the  tax  have  not  been  taken  ox  where  the 
taxation  thereof  has  been  held  in  abeyance,  shall  be  appraised  at  their  full, 
undiminished,  clear  value  when  the  persons  entitled  thereto  shall  come  into  the 
beneficial  enjoyment  or  possession  thereof  without  diminution  for  or  on  account 
of  any  valuation  theretofore  made  of  the  particular  estates  for  purposes  of 
taxation,  upon  which  said  estates  in  expectancy  may  have  been  limited. 

Where  an  estate  for  life  or  for  years  can  be  devested  by  the  act  or  omission 
of  the  legatee  or  devisee,  it  shall  be  taxed  as  if  there  were  no  possibility  of 
such  de  vesting.  (Laws  1907-08,  p.  741;  Comp.  Laws  1909,  p.  1553.) 

§  1024.    Proceedings  by  Appraiser — Compensation. 

Sec.  7725.  Every  such  appraiser  shall  forthwith  give  notice  by  mail  to 
all  persons  known  to  have  claim  or  interest  in  the  property  to  be  appraised, 
including  the  county  treasurer,  and  to  such  persons  as  the  county  court  may 
by  order  direct,  of  the  time  and  place  when  he  will  appraise  such  property. 


OKLAHOMA  STATUTE.  655 

He  shall,  at  such  time  and  place,  appraise  the  same  at  its  fair  market  value, 
as  herein  prescribed,  and  for  that  purpose  the  said  appraiser  is  authorized 
to  issue  subpoenas  and  to  compel  the  attendance  of  witnesses  before  him 
and  to  take  the  evidence  of  such  witnesses  under  oath  concerning  such  property 
and  the  value  thereof;  and  he  shall  make  report  thereof  and  of  such  value  in 
writing,  to  the  said  county  court,  together  with  the  depositions  of  the  wit- 
nesses examined,  and  such  other  facts  in  relation  thereto  and  to  the  said 
matters  as  the  said  county  court  may  order  or  require.  Every  appraiser  shall 
be  paid  on  the  certificate  of  the  county  court  at  the  rate  of  two  dollars  per 
day  for  every  day  actually  and  necessarily  employed  in  such  appraisal,  and 
his  actual  and  necessary  traveling  expenses  and  the  fees  paid  such  witnesses, 
which  fees  shall  be  the  same  as  those  now  paid  to  witnesses  subpoenaed  to 
attend  in  courts  of  record,  by  the  county  treasurer  out  of  any  funds  he  may 
have  on  his  hands  on  account  of  any  tax  imposed  under  the  provisions  of  this 
act.  (Laws  1907-08,  p.  743;  Comp.  Laws  1909,  p.  1555.) 

§  1025.    Report  of  Appraiser. 

Sec.  7726.  The  report  of  the  appraiser  shall  be  made  in  duplicate,  one  of 
which  duplicates  shall  be  filed  in  the  office  of  the  county  court  and  the  other 
in  the  office  of  the  state  auditor.  Upon  filing  such  report  in  the  county  court, 
the  county  court  shall  forthwith  give  twenty  days'  notice  by  mail  to  all  persons 
known  to  be  interested  in  the  estate,  including  the  county  treasurer,  of  the  time 
and  place  of  the  hearing  in  the  matter  of  such  report  and  the  county  court 
from  such  report  and  other  proofs  relating  to  any  such  estate  shall  forthwith 
at  the  time  so  fixed,  determine  the  cash  value  of  such  estate  and  the  amount 
of  tax  to  which  the  same  is  liable,  or  the  county  court  without  appointing  an 
appraiser  upon  giving  twenty  days'  notice  by  mail  to  all  persons  known  to  be 
interested  in  the  estate  including  the  county  treasurer,  of  the  time  and  place  of 
hearing,  may  at  the  time  so  fixed  hear  evidence  and  determine  the  cash  value 
of  such  estate  and  the  amount  of  tax  to  which  the  same  is  liable.  If  the  resi- 
dence or  postoffice  address  of  any  person  interested  in  any  estate  is  unknown 
to  the  executor,  administrator,  or  trustee,  notice  of  the  hearing  in  the  matters 
of  the  report  of  the  appraisers  or  notice  that  the  county  court  without  appoint- 
ing an  appraiser  will  determine  the  cash  value  of  an  estate,  shall  be  given 
to  all  such  persons  by  publication  of  such  notice  not  less  than  three  succes- 
sive weeks  prior  to  the  time  fixed  for  such  hearing  or  determination  in  such 
newspaper  published  within  the  county  as  the  court  shall  direct.  (Laws 
1907-OS,  p.  743;  Oomp.  Laws  1909,  p.  1555.) 

§  1026.     Duty  of  Insurance  Commissioner. 

Sec.  7727.  The  commissioner  of  insurance  shall  on  application  of  any 
county  court  determine  the  value  of  any  such  future  or  contingent  estates, 
income,  or  interests  therein,  limited,  contingent,  dependent  or  determinable 
upon  the  life  or  lives  of  the  person  or  persons  in  being  upon  the  facts  con- 
tained in  such  appraiser's  report  or  upon  the  facts  contained  in  the  county 
court's  finding  and  determination  and  certify  the  same  to  the  county  court 
and  his  certificate  shall  be  presumptive  evidence  that  the  method  of  conipu- 


656  INHERITANCE  TAXATION. 

tatio.n  adopted  therein  is  correct.     (Laws  1907-08,  p.  744;  Comp.  Laws  1909, 
p.  1555.) 

§  1027.    Duty  of  State  Auditor. 

Sec.  7728.  The  state  auditor  or  any  person  dissatisfied  with  the  appraise- 
ment or  assessment  and  determination  of  such  tax,  may  apply  for  a  rehearing 
thereof,  before  the  county  court,  within  sixty  days  from  the  fixing,  assessing 
and  determination  of  the  tax  by  the  county  court  as  herein  provided,  on  filing 
a  written  notice  which  shall  state  the  grounds  of  the  application  for  a  rehear- 
ing. The  rehearing  shall  be  upon  the  records,  proceedings,  and  proofs  had 
and  taken  on  the  hearings  as  herein  provided  and  a  new  trial  shall  not  be  had 
or  granted  unless  specially  ordered  by  the  county  court.  (Laws  1907-08,  p. 
744;  Comp.  Laws  1909,  p.  1555.) 

§  1028.     Guardian  of  Person  Under  Disability — Reappraisement. 

Sec.  7729.  The  county  court  shall  immediately  give  notice  by  mail  upon 
the  determination  by  him  as  to  the  value  of  any  estate  which  is  taxable  under 
this  act  and  of  the  tax  to  which  it  is  liable  to  all  parties  known  to  be  interested 
therein  including  the  state  auditor.  If  however  it  appears  at  this  or  any 
stage  of  the  proceedings  that  any  of  such  parties  known  to  be  interested 
in  the  estate  is  an  infant  or  an  incompetent,  the  coumty  court  shall  if  the 
interest  of  such  infant  OT  incompetent  is  presently  involved,  and  is  adverse 
to  that  of  the  other  persons  interested  therein/  appoint  a  special  guardian  of 
such  infant,  but  nothing  in  this  provision  shall  affect  the  right  of  an  infant 
over  fourteen  years  of  age  or  of  anyone  on  behalf  of  an  infant  under  fourteen 
years  of  age,  to  nominate  and  apply  for  the  appointment  of  a  special  guardian 
of  such  infant  at  any  stage  of  the  proceedings. 

Within  one  year  after  the  entry  of  an  order  or  decree  of  the  county  court 
determining  the  value  of  an  estate  and  assessing  the  tax  thereon,  the  state 
auditor  may  if  he  believes  that  such  appraisal,  assessment,  or  determination 
has  been  fraudulently,  collusively  or  erroneously  made,  make  application  to  the 
judge  of  the  district  court  in  which  the  said  estate  is  administered  on  for  a 
reappraisal  thereof.  The  district  judge  to  whom  such  application  is  made 
may  thereupon  appoint  a  competent  person  to  reappraise  such  estate.  Such 
appraiser  shall  possess  the  powers,  be  subject  to  the  duties,  shall  give  the 
notice,  and  receive  the  compensation  provided  by  sections  7724  and  7725. 
Such  compensation  shall  be  payable  by  the  county  treasurer  out  of  any  funds 
he  may  have  on  account  of  any  tax  imposed  under  the  provisions  of  this  act 
upon  the  certificate  of  the  district  judge  appointing.  The  report  of  such 
appraiser  shall  be  filed  in  the  district  court  for  which  he  was  appointed 
and  thereafter  the  same  proceedings  shall  be  taken  and  had  by  and  before 
such  district  court  as  herein  provided  to  be  taken  and  had  by  and  before 
the  county  court. 

The  determination  and  assessment  of  such  district  court  shall  supersede 
the  determination  and  assessment  of  the  county  court  and  shall  be  filed  by  such 
district  court  in  the  office  of  the  state  auditor  and  a  certified  copy  thereof 
transmitted  to  the  county  court  of  the  proper  county.  (Laws  1907-08,  p. 
744;  Comp.  Laws  1909,  p.  1556.) 


OKLAHOMA  STATUTE.  657 

§  1029.    Procedure  to  Enforce  Unpaid  Tax. 

Sec.  7730.  If  the  treasurer  of  any  county  shall  have  reason  to  believe 
that  any  tax  is  due  and  unpaid  under  this  act  after  the  refusal  or  neglect 
of  any  person  liable  therefor  to  pay  the  same,  he  shall  notify  the  county  attor- 
ney of  the  county  in  writing  of  such  failure  or  neglect;  and  such  county 
attorney,  if  he  have  probable  cause  to  believe  that  such  tax  is  due  and  unpaid, 
shall  apply  to  the  county  court  for  a  citation  citing  the  person  liable  to  pay 
such  tax  to  appear  before  the  court  on  the  day  specified  not  more  than  three 
months  from  the  date  of  such  citation  and  show  cause  why  the  tax  should  not 
be  paid.  The  judge  of  the  county  court,  upon  such  application  and  when- 
ever it  shall  appear  to  him  that  any  such  tax,  accruing  under  this  act,  has  not 
been  paid  as  required  by  law,  shall  issue  such  citation,  and  the  service  of  such 
citation,  and  the  time,  manner,  and  proof  thereof,  and  the  hearing  and  de- 
termination thereof,  shall  conform  as  near  as  may  be  to  the  provisions  of  the 
laws  governing  probate  practice  of  this  state,  and  whenever  it  shall  appear 
that  any  such  tax  is  due  and  payable,  and  the  payment  thereof  cannot  be  en- 
forced under  the  provisions  of  this  act  in  said  county  court,  the  person  or 
corporation  from  Whom  the  same  is  due  is  hereby  made  liable  to  the  county 
of  the  county  court  having  jurisdiction  over  such  estate  or  property  for  the 
amount  of  such  tax,  and  it  shall  be  the  duty  of  the  county  attorney  of  said 
county  in  the  name  of  such  county  to  sue  for  and  enforce  the  collection  of  such 
tax,  and  it  is  made  the  duty  of  said  county  attorney  to  appear  for  and  act  on 
behalf  of  any  county  treasurer,  who  shall  be  cited  to  appear  before  any  county 
court  under  the  provisions  of  this  act.  (Laws  1907-08,  p.  745;  Comp.  Laws 
1909,  p.  1556.) 

§  1030.     Books  to  be  Furnished  by  State  Auditor. 

Sec.  7731.  The  state  auditor  shall  furnish  to  each  county  court  a  book 
which  shall  be  a  public  record,  and  in  which  he  shall  enter  the  name  of  every 
decendent  [decedent]  whose  estate  is  or  may  become  liable  for  such  tax,  and 
upon  whose  estate  an  application  to  him  has  been  made  for  the  issue  of  letters 
of  administration,  or  letters  testamentary,  or  ancillary  letters,  the  date  and 
place  of  death  of  such  decendent  [decedent]  the  estimated  value  of  the  prop- 
erty of  such  decendent  [decedent],  the  names,  places,  residence  and  relationship 
to  him  of  his  heirs  at  law,  the  names  and  places  of  residence  of  the  legatees 
and  devisees  in  any  will  of  any  such  decedent,  the  amount  of  each  legacy  and 
the  estimated  value  of  any  property  devised  therein  and  to  whom  devised. 
These  entries  shall  be  made  from  the  date  [data]  contained  in  the  paper  filed 
on  any  such  application,  or  in  any  proceeding  relating  to  the  estate  of  the 
decendent  [decedent].  The  county  court  shall  also  enter  in  such  book  the 
amount  of  the  personal  property  of  any  such  decendent  [decedent]  as  shown 
by  the  inventory  thereof,  when  made  and  filed  in  his  office,  and  the  returns 
made  by  any  appraiser  appointed  by  him  under  this  act,  and  the  value  of 
annuities,  life  estates,  terms  of  years,  and  other  property  of  any  such  dece- 
dent, or  given  by  him  in  his  will  or  otherwise,  as  fixed  by  the  county  court, 
and  the  tax  assessed  thereon,  and  the  amounts  of  any  receipts  for  payment 
of  tax  on  the  estate  of  such  decedent,  under  this  act  filed  with  him.  The 
state  auditor  shall  also  furnish  to  each  county,  forms  for  the  reports  to  be 
42 


658  INHERITANCE   TAXATION. 

made  by  such  county  court,  which  shall  correspond  with  the  entries  to  be  made 
in  such  books.     (Laws  1907-08,  p.  746;  Oomp.  Laws  1909,  p.  1557.) 

§  1031.    Report  of  County  Judge. 

Sec.  7732.  Each  judge  of  county  court  shall  on  January,  April,  July,  and 
October  first,  of  each  year,  make  a  report  in  duplicate,  upon  the  forms  fur- 
nished by  the  state  auditor  containing  all  the  data  and  matters  required  to  be 
entered  in  such  books,  one  of  which  shall  be  immediately  delivered  to  the 
county  treasurer  and  the  other  transmitted  to  the  state  auditor.  (Laws  1907— 
OS,  p.  747;  Comp.  Laws  1909,  p.  1557.) 

§  1032.     Report  of  County  Treasurer. 

Sec.  7733.  Each  county  treasurer  shall  make  a  report,  under  oath  to  the 
state  auditor  on  January,  April,  July  and  October  first,  of  each  year,  of  all 
taxes  received  by  him  under  this  act,  stating  for  what  estate  and  by  whom 
and  when  paid.  The  form  of  such  report  may  be  prescribed  by  the  state 
auditor.  He  shall  at  the  same  time  pay  the  state  treasurer  all  the  taxes  re- 
ceived by  him  under  this  act  and  not  previously  paid  into  the  state  treasury, 
and  for  all  such  taxes  collected  by  him  and  not  paid  the  state  treasurer  within 
thirty  days  from  the  times  herein  required  he  shall  pay  interest  at  the  rate 
of  ten  per  centum  per  annum.  (Laws  1907-08,  p.  747;  Comp.  Laws  1909, 
p.  1557.) 

§  1033.    Extensions  and  Compromise  by  County  Treasurer. 

Sec.  7734.  The  county  treasurer,  with  the  consent  of  the  state  auditor 
and  the  attorney  general,  expressed  in  writing,  is  authorized  to  enter  into  an 
agreement  with  the  executor,  administrator  or  trustee  of  any  estate  therein 
situate  in  which  remainders  or  expectant  estates  have  been  of  such  a  nature 
or  so  disposed  and  circumstanced  that  the  taxes  therein  were  held  not  presently 
payable  or  where  the  interests  of  the  legatees  or  devisees  are  not  ascertainable 
under  the  provisions  of  this  act,  and  to  compound  such  taxes  upon  such  terms 
as  may  be  deemed  equitable  and  expedient  and  to  grant  discharges  to  said 
executors,  administrators,  or  trustees  upon  the  payment  of  the  taxes  provided 
for  in  such  composition,  provided,  however,  that  no  such  composition  shall  be 
conclusive  in  favor  of  said  executors,  administrators  or  trustees  as  against 
the  interests  of  such  cestui  que  trust  as  may  possess  either  present  rights 
of  enjoyment,  or  fixed,  absolute  or  indefeasible  rights  of  future  enjoyment 
or  of  such  as  would  possess  such  rights  in  the  event  of  the  immediate  ter- 
mination of  particular  estates,  unless  they  consent  thereto  either  personally 
when  competent  or  by  guardian.  Composition  or  settlement  made  or  effected 
under  the  provisions  of  this  section  shall  be  executed  in  triplicate  and  one  copy 
shall  be  filed  in  the  office  of  the  state  auditor;  one  copy  in  the  office  of  the- 
judge  of  the  county  court  in  which  the  tax  was  paid;  and  one  copy  to  be  de- 
livered to  the  executors,  administrators  or  trustees,  who  shall  be  parties  thereto. 
(Laws  1907-08,  p.  747;  Comp.  Laws  1909,  p.  1557.) 

§  1034.    Receipts  and  Their  Registration. 

Sec.  7735.  Any  person  shall  upon  the  payment  of  the  sum  of  fifty  cents, 
be  entitled  to  a  receipt  from  the.  county  treasurer  of  any  county,  of  the  state 


OKLAHOMA  STATUTE.  659 

auditor,  or  at  his  option  to  a  copy  of  a  receipt  that  may  have  been  given  by 
such  treasurer  or  state  auditor  for  the  payment  of  any  tax  under  this  act, 
under  the  official  seal  of  such  treasurer  or  state  auditor,  which  receipt  shall 
designate  upon  what  real  property,  if  any,  of  which  any  decedent  may  have  died 
seised,  such  tax  shall  have  been  paid,  by  whom,  and  whether  in  full  of  such 
tax.  Such  receipt  may  be  recorded  in  the  office  of  the  register  of  deeds  of 
the  county  in  which  such  property  is  situate  in  a  book  to  be  kept  by  him  for 
that  purpose,  which  shall  be  labeled  "transfer  tax."  (Laws  1907-08,  p.  748; 
Comp.  Laws  1909,  p.  1558.) 

§  1035.     Disposition  of  Revenue. 

Sec.  7736.  All  taxes  levied  and  collected  under  this  act,  less  any  expenses 
of  collection,  shall  be  paid  into  the  treasury  of  the  state,  and  one-half  of  same 
shall  be  used  for  the  public  schools  of  this  state  as  other  available  state 
common  school  funds,  and  one-half  shall  be  applicable  to  the  expenses  of  the 
state  government,  and  to  such  other  purposes  as  the  legislature  may  by  law 
direct.  (Laws  1907-08,  p.  748;  Comp.  Laws  1909,  p.  1558.) 

§  1036.    Interpretation  of  Words  Used  in  Statute. 

Sec.  7737.  The  words  "estate"  and  "property"  as  used  in  this  act  shall  be 
taken  to  mean  the  real  and  personal  property  or  interest  therein  of  the  testator, 
intestate,  grantor,  bargainer,  vendor  or  donor  passing  or  transferred  to  in- 
dividual legatees,  devisees,  heirs,  next  of  kin,  grantees,  donees,  vendees  or 
successors,  and  shall  include  all  personal  property  within  or  without  the  state. 
The  word  "transfer"  as  used  in  this  act  shall  be  taken  to  include  the  passing 
of  property  by  inheritance,  descent,  devise,  succession,  bequest,  grant,  deed, 
bargain,  sale,  gift  or  appointment  in  the  manner  herein  prescribed.  The 
word  "decedent"  as  used  in  this  act  shall  include  the  testator,  intestate,  grantor, 
bargainer,  vendor  or  donor.  The  words  "county  treasurer"  and  "county  at- 
torney" as  used  in  this  act  shall  be  taken  to  mean  the  treasurer  and  county 
attorney  of  the  county  of  the  county  court  having  jurisdiction  as  provided  in 
section  7723  of  this  act.  (Laws  1907-08,  p.  748;  Comp.  Laws  1909,  p.  1558.) 


660  INHERITANCE  TAXATION. 

CHAPTER  XLIX. 

OREGON  STATUTE. 

(Laws  of  1903,  pp.  49-6 S ;  Laws  of  1905,  p.  S09;  Laws  of  1909,  p.  60;  1  LorcFi 
Oregon  Laws,  pp.  675-689.) 

§  1037.  Transfers  Subject  to  Tax — Exemptions. 

§  1038.  Bates  of  Taxation. 

§  1039.  Time  for  Payment. 

§  1040.  Collection  of  Tax  by  Executor. 

§  1041.  Payment  to  State  Treasurer — Receipts. 

§  1042.  Lien  of  Tax. 

§  1043.  Interest  and  Discount. 

§  1044.  Sale  of  Property  to  Pay  Tax. 

§  1045.  Legacy  for  Limited  Period  or  Charge  upon  Eeal  Estate. 

§  1046.  Refund  of  Tax  Erroneously  Paid, 

§  1047.  Transfer  of  Stock  or  Obligations  by  Foreign  Executor, 

§  1048.  Delivery  of  Deposits  or  Securities — Notice. 

§  1049.  Payment  Deferred — Bond. 

§  1050.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  1051.  Jurisdiction  of  County  Court. 

§  1062.  Notice  to  State  Treasurer  of  Transfer — Valuation  of  Property. 

§  1053.  Duty  of  Executor  to  Make  Inventory  and  Appraisement. 

§  1054.  Extension  of  Time  for  Appraisement. 

§  1055.  Inventory  and  Appraisement  to  be  Sent  to  State  Treasurer. 

§  1056.  Court  may  Act  on  Appraisement  or  Require  Another. 

§  1057.  Appointment  of  Appraisers. 

§  1058.  Time  for  Appraisement — Life  and  Future  or  Contingent  Estates. 

§  1059.  Appraisement — Time  and  Place — Fees  of  Appraiser. 

§  1060.  Report  of  Appraisers — Filing  in  County  Court. 

§  1061.  Notice  of  Determination  of  Value. 

§  1062.  Reappraisement  and  Assessment. 

§  1063.  Duty  of  Treasurer  When  Tax  Unpaid. 

§  1064.  Books  and  Forms  to  be  Furnished  by  Secretary  of  State — Entries  by 

Courts. 

§  1065.  Reports  by  Judges  and  Custodian  of  Deeds  and  Records. 

§  1066.  Receipts  to  be  Furnished  by  State  Treasurer. 

§  1067.  Recording  of  Receipts.  i 

§  1068.  Compromise  or  Settlement  of  Tax. 

§  1069.  Reports  to  be  Furnished  by  Executor. 

§  1070.  Appellate  Proceedings. 

§  1071.  Failure  to  Produce  Will — Penalty. 

§  1072.  Administering  Personal  Estate  Without  Proving  Will — Penalty. 

§  1073.  Notice  to  State  Treasurer  of  Transfer. 

§  1074.  Property  Subject  to  Tax. 

§  1075.  Property  in  State  Belonging  to  Nonresident  Decedent. 


OREGON  STATUTE.  661 

§  1076.     Compensation  of  Officers. 

§  1077.     Payment  of  Expenses  and  Disbursement. 

§  1078.     Appraiser  Taking  More  Than  Regular  Fees — Penalty. 

§  1037.     Transfers  Subject  to  Tax — Exemptions. 

Sec.  1191.  All  property  within  the  jurisdiction  of  the  state,  and  any  in- 
terest therein,  whether  belonging  to  the  inhabitants  of  this  state  or  not,  and 
whether  tangible  or  intangible,  which  shall  pass  by  will  or  by  statutes  of 
inheritance  of  this  or  any  other  state,  or  by  deed,  grant,  bargain,  sale,  or  gift, 
made  in  contemplation  of  the  death  of  the  grantor,  or  bargainer,  or  intended 
to  take  effect  in  possession  or  enjoyment  after  the  death  of  the  grantor,  bar- 
gainer, or  donor,  to  any  person  or  persons,  or  to  any  body  or  bodies,  politic 
or  corporate,  in  trust  or  otherwise,  or  by  reason  whereof  any  person,  or  body 
politic  or  corporate,  shall  become  beneficially  entitled,  in  possession  or  expecta- 
tion, to  any  property  or  income  thereof,  shall  be  and  is  subject  to  a  tax  at  the 
rate  hereinafter  specified  in  section  1192,  to  be  paid  to  the  treasurer  of  the 
state  for  the  use  of  the  state;  and  all  heirs,  legatees,  and  devisees,  adminis- 
trators, executors,  and  trustees,  and  any  such  grantee  under  a  conveyance, 
and  any  such  donee  under  a  gift  made  during  the  grantor  or  donor's  life,  shall 
be  respectively  liable  for  any  and  all  such  taxes,  with  interest  thereon,  until 
the  same  shall  have  been  paid,  as  hereinafter  provided,  provided,  however,  that 
devises,  bequests,  legacies,  and  gifts  to  benevolent,  charitable,  or  educational 
institutions  incorporated  within  this  state  and  actually  engaged  in  this  state 
in  carrying  out  the  objects  and  purposes  for  which  so  incorporated,  or  to  any 
person  or  persons  to  be  held  in  trust  for  any  such  institution  in  lieu  thereof, 
shall  be  exempt  from  any  taxation  under  the  provisions  of  this  act.  (Laws 
1903,  p.  49;  Laws  1905,  p.  309;  1  Lord's  Laws,  p.  675.) 

§  1038.    Bates  of  Taxation. 

Sec.  1192.  When  such  inheritance,  devise,  bequest,  legacy,  gift,  or  bene- 
ficial interest  to  any  property  or  income  therefrom  shall  pass  to  or  for  the  use 
or  benefit  of  any  grandfather,  grandmother,  father,  mother,  husband,  wife, 
child,  brother,  sister,  wife  or  widow  of  a  son,  or  the  husband  of  a  daughter,  or 
any  child  or  children  adopted  as  such  in  conformity  with  the  laws  of  the  state 
of  Oregon,  or  to  any  person  to  whom  the  decedent  for  not  lees  than  ten  years 
prior  to  death  stood  in  the  acknowledged  relation  of  a  parent,  or  to  any  lineal 
descendant  born  in.  lawful  wedlock,  in  every  such  case  the  tax  shall  be  at  the 
rate  of  one  per  centum  on  the  appraised  value  thereof  received  by  each  person ; 
provided,  that  in  the  above  cases  any  estate  which  may  be  valued  at  a  less 
sum  than  $10,000  shall  not  be  subject  to  any  such  duty  or  tax,  and  the  tax  is  to 
be  levied  in  the  above  cases  only  on  the  excess  of  $5,000  received  by  each  person. 

When  such  inheritance,  devise,  bequest,  legacy,  gift,  or  the  beneficial  interest 
to  any  property  or  income  therefrom  shall  pass  to  or  for  the  use  or  benefit 
of  any  uncle,  aunt,  niece,  nephew,  or  any  lineal  descendant  of  the  same,  in 
every  such  case  the  tax  shall  be  at  the  rate  of  two  per  centum  on  the  ap- 
praised value  thereof  received  by  each  person;  provided,  that  in  the  above  cases 
any  estate  which  may  be  valued  at  a  less  sum  than  $5,000  shall  not  be  subject 
to  any  such  duty  or  tax,  and  the  tax  is  to  be  levied  in  the  above  cases  only 
on  the  excess  of  $2,000  received  by  each  person. 


662  INHERITANCE  TAXATION. 

In  all  other  cases  the  tax  shall  be  at  the  rate  of  three  per  centum  on  the 
appraised  value  thereof  received  by  each  person,  body  politic  or  corporate,  on 
th«  whole  of  all  amounts  received  not  exceeding  $10,000;  four  per  centum 
on  the  whole  of  all  amounts  received  over  $10,000,  and  not  exceeding  $20,000; 
five  per  centum  on  the  whole  of  all  amounts  received  over  $20,000,  and  not 
exceeding  $50,000;  six  per  centum  on  the  whole  of  all  amounts  received  over 
$50,000;  provided,  that  in  the  above  cases  any  estate  which  may  be  valued  at  a 
less  sum  than  $500  shall  not  be  subject  to  any  such  duty  or  tax,  and  the  tax 
is  to  be  levied  in  the  above  cases  only  when  the  amount  received  by  a  person, 
body  politic  or  corporate  amounts  to  $500  or  more.  (Laws  1903,  p.  49;  Laws 
1909,  p.  60;  1  Lord's  Laws,  p.  676.) 

§  1039.     Time  for  Payment. 

Sec.  1193.  All  taxes  imposed  by  this  act  shall  take  effect  at  and  accrue 
upon  the  death  of  the  decedent,  or  donor,  and  shall  be  due  and  payable  at 
the  expiration  of  eight  months  from  such  death,  except  as  otherwise  provided 
in  this  act;  provided,  however,  that  taxes  upon  any  devise,  bequest,  legacy,  or 
gift,  limited,  conditioned,  dependent,  or  determinate  upon  the  happening  of 
any  contingency  or  future  event,  by  reason  of  which  the  full  and  true  value 
thereof  cannot  be  ascertained  at  or  before  the  time  when  the  taxes  become 
due  and  payable  as  aforesaid,  shall  accrue  and  become  due  and  payable  when 
the  person  or  corporation  beneficially  entitled  thereto  shall  come  into  actual 
possession  or  enjoyment  thereof.  (Laws  1903,  p.  49;  1  Lord's  Laws,  p.  677.) 

§  1040.     Collection  of  Tax  by  Executor. 

Sec.  1194.  Any  administrator,  executor,  or  trustee  having  in  charge,  or 
in  trust,  any  property  for  distribution,  embraced  in  or  belonging  to  any  inherit- 
ance, devise,  bequest,  legacy,  or  gift,  subject  to  the  tax  thereon  as  imposed 
by  section  1191,  shall  deduct  the  tax  therefrom,  and  within  thirty  days  there- 
after he  shall  pay  over  the  same  to  the  state  treasurer,  as  herein  provided. 
If  such  property  be  not  in  money,  he  shall  collect  the  tax  on  such  inheritance, 
devise,  bequest,  legacy,  or  gift,  upon  the  appraised  value  thereof  from  the  per- 
son entitled  thereto.  He  shall  not  deliver,  or  be  compelled  to  deliver,  any  prop- 
erty embraced  in  any  inheritance,  devise,  bequest,  legacy,  or  gift,  subject  to  tax 
under  this  act,  to  any  person  until  he  shall  have  collected  the  tax  thereon. 
(Laws  1903,  p.  49;  1  Lord's  Laws,  p.  677.) 

§  1041.    Payment  to  State  Treasurer — Receipts. 

Sec.  1195.  The  tax  imposed  by  this  act  upon  inheritances,  devises,  bequests, 
or  legacies,  shall  be  payable  to  the  state  treasurer,  and  the  treasurer  shall  give 
the  executor,  administrator,  trustee,  or  person  paying  such  tax,  a  receipt,  as 
provided  by  subdivision  4,  section  2638,  whereupon  it  shall  be  a  proper  voucher 
in  the  settlement  of  his  accounts.  No  executor,  administrator,  or  trustee  shall 
be  entitled  to  a  final  accounting  of  an  estate  in  the  settlement  of  which  a  tax 
may  become  due  under  the  provisions  of  this  act,  unless  he  shall  produce  a 
receipt  so  sealed  and  countersigned,  or  a  copy  thereof,  certified  by  the  said 
treasurer,  or  unless  a  bond  shall  have  been  filed,  as  prescribed  by  section 
1203.  All  taxes  paid  into  the  state  treasury  under  the  provisions  of  thia 


OREGON  STATUTE.  663 

section  shall  belong  to  and  be  a  part  of  the  inheritance  tax  fund  of  the  state; 
provided,  whenever  the  amount  of  money  in  this  fund  exceeds  $10,000,  then 
all  moneys  in  excess  of  $5,000  shall  be  transferred  to  the  general  fund.  (Laws 
1903,  p.  49;  1  Lord's  Lawsi,  p.  677.) 

§  1042.    Lien  of  Tax. 

Sec.  1196.  Every  tax  imposed  by  this  act  shall  be  a  lien  upon  the  property 
embraced  in  any  inheritance,  devise,  bequest,  legacy,  or  gift,  until  paid,  and 
the  person  to  whom  such  property  is  transferred,  and  the  administrators, 
executors,  and  trustees  of  every  estate  embracing  such  property  shall  be  per- 
sonally liable  for  such  tax  until  its  payment,  to  the  extent  of  the  value  of 
such  property;  and  provided  further,  that  all  inheritance  taxes  shall  be  sued 
for  within  five  years  after  they  are  due  and  legally  demandable,  otherwise 
they  shall  be  conclusively  presumed  to  be  paid  and  cease  to  be  a  lien  as  against 
the  estate,  or  any  part  thereof,  of  the  decedent.  (Laws  1903,  p.  49;  1  Lord's 
Laws,  p.  678.) 

§  1043.    Interest  and  Discount. 

Sec.  1197.  If  such  tax  is  paid  within  eight  months  from  the  accruing 
thereof,  a  discount  of  five  per  centum  shall  be  allowed  and  deducted  there- 
from. If  such  tax  is  not  paid  within  eight  months  from  the  accruing  thereof, 
interest  shall  be  charged  and  collected  thereon  at  the  rate  of  eight  per  centum 
per  annum  from  the  time  the  tax  is  due  and  payable,  unless  by  reason  of  claims 
upon  the  estate,  necessary  litigation,  or  other  unavoidable  delay,  such  tax 
cannot  be  determined  and  paid  as  herein  provided,  in  which  case  interest  at 
the  rate  of  six  per  centum  per  annum  shall  be  charged  upon  such  tax  from 
the  time  from  the  accruing  thereof  until  the  cause  of  such  delay  is  removed, 
after  which  eight  per  centum  shall  be  charged.  Tn  all  cases  when  a  bond  shall 
be  given,  under  the  provisions  of  section  1203,  interest  shall  be  charged  at  the 
rate  of  six  per  centum  from  the  accrual  of  the  tax  until  the.  date  of  the  pay- 
ment thereof.  (Laws  1903,  p.  49;  1  Lord's  Laws,  p.  678.) 

§  1044.     Sale  of  Property  to  Pay  Tax. 

Sec.  1198.  Every  executor,  administrator,  or  trustee  shall  have  full  power 
to  sell  so  much  of  the  property  embraced  in  any  inheritance,  devise,  bequest, 
or  legacy,  as  will  enable  him  to  pay  the  tax  imposed  by  this  act,  in  the  same 
manner  as  he  might  be  entitled  by  law  to  do  for  the  payment  of  the  debts  of 
a  testator  or  intestate.  (Laws  1903,  p.  49;  1  Lord's  Laws,  p.  678.) 

§  1045.    Legacy  for  Limited  Period  or  Charge  upon  Real  Estate. 

Sec.  1199.  If  any  bequest  or  legacy  shall  be  charged  upon  or  payable  out 
of  any  property,  the  heir  or  devisee  shall  deduct  such  tax  therefrom  and  pay 
such  tax  to  the  administrator,  executor,  or  trustee,  and  the  tax  shall  remain 
a  lien  or  charge  on  such  property  until  paid;  and  the  payment  thereof  shall 
be  enforced  by  the  executor,  administrator,  or  trustee  in  the  same  manner 
that  payment  of  the  bequest  or  legacy  might  be  enforced;  or  by  the  prose- 
cuting attorney  under  section  1217.  If  any  bequest  or  legacy  shall  be  given 
in  money  for  a  limited  period,  the  administrator,  executor,  or  trustee  shall 


G64  INHERITANCE  TAXATION. 

retain  the  tax  upon  the  whole  amount;  but,  if  it  be  not  in  money,  he  shall 
make  application  to  the  court  having  jurisdiction  of  an  acccunting  by  him 
to  make  an  appointment  [apportionment],  if  the  case  reqaires,  of  the  sum 
to  be  paid  into  his  hands  by  such  legatee  or  beneficiary,  and  for  such  further 
order  relative  thereto  as  the  case  may  require.  (Laws  1903,  p.  49;  1  Lord's 
Laws,  p.  678.) 

§  1046.    Refund  of  Tax  Erroneously  Paid. 

Sec.  1200.  When  any  tax  imposed  by  this  act  shall  have  been  erroneously 
paid,  wholly  or  in  part,  the  person  paying  the  same  shall  be  entitled  to  refund- 
ment  of  the  amount  so  erroneously  paid,  and  the  secretary  of  state  shall,  upon 
satisfactory  proofs  presented  to  him  of  the  facts  relating  thereto,  draw  his 
warrant  upon  the  state  treasurer  for  the  amount  thereof  in  favor  of  the  person 
entitled  thereto,  payable  from  the  inheritance  tax  fund;  provided,  however, 
that  all  applications  for  such  refunding  of  erroneous  taxes  shall  be  made  within 
three  years  from  the  payment  thereof.  (Laws  1903,  p.  49;  1  Lord's  Laws,  p. 
679.) 

§  1047.    Transfer  of  Stock  or  Obligations  by  Foreign  Executor. 

Sec.  1201.  If  a  foreign  executor,  administrator,  or  trustee  shall  assign  or 
transfer  any  stock  or  obligations  in  this  state  standing  in  the  name  of  .the 
decedent,  or  in  trust  for  a  decedent,  liable  to  any  such  tax,  the  tax  shall  be 
paid  to  the  state  treasurer  on  or  before  the  transfer  thereof,  and  no  such 
assignment  or  transfer  shall  be  valid  unless  such  tax  is  paid.  (Laws  1903, 
p.  49;  1  Lord's  Laws,  p.  679.) 

§  1048.     Delivery  of  Deposits  or  Securities — Notice. 

Sec.  1202.  No  safe  deposit  company,  trust  company,  bank,  corporation,  or 
other  institution,  person  or  persons,  holding  securities  or  assets  of  a  decedent, 
or  corporation  in  which  said  decedent,  at  the  time  of  his  death,  owned  any 
stock,  shall  deliver  or  transfer  the  same  to  the  executors,  administrators,  or 
legal  representatives  of  said  decedent,  or  upon  their  order  or  request,  unless 
notice  of  the  said  time  and  place  of  such  intended  transfer  be  served  upon 
the  state  treasurer  in  writing  at  least  five  days  prior  to  the  said  transfer; 
and  it  shall  be  lawful  for  the  said  state  treasurer,  personally  or  by  representa- 
tive, to  examine  said  securities  prior  to  the  time  of  such  delivery  or  transfer. 
If  upon  such  examination  the  state  treasurer,  or  his  said  representative,  sEall, 
for  any  cause,  deem  it  advisable  that  such  securities  or  assets  should  not  be 
immediately  delivered  or  transferred,  he  may  forthwith,  notify,  in  writing, 
such  company,  bank,  institution,  or  person  to  defer  delivery  or  transfer  thereof 
for  a  period  not  to  exceed  ten  days  from  the  date  of  such  notice,  and  there- 
upon it  shall  be  the  duty  of  the  party  notified  to  defer  such  delivery  until 
the  time  stated  in  such  notice,  or  until  the  revocation  thereof  within  such  ten 
days;  failure  to  serve  the  notice  first  above  mentioned  or  allow  such  examina- 
tion, or  to  defer  the  delivery  of  such  securities  or  assets  for  the  time  stated 
in  the  second  of  said  notices,  shall  render  said  safe  deposit  company,  trust 
company,  corporation,  bank,  or  other  institution,  person  or  persons,  liable  to 
the  payment  of  the  tax  due  on  said  securities  or  assets,  pursuant  to  the  provi- 
sions of  this  act.  (Laws  1903,  p.  49;  1  Lord's  Laws,  p.  679.) 


OREGON  STATUTE.  665 

§  1049.    Payment  Deferred — Bond. 

See.  1203.  Any  person  or  corporation  beneficially  interested  in  any  property 
chargeable  with  a  tax  under  section  1191,  and  executors,  administrators,  and 
trustees  thereof,  may  elect,  within  six  months  from  the  death  of  the  decedent, 
not  to  pay  such  tax  until  the  person  or  persons  beneficially  interested  therein 
shall  come  into  actual  possession  or  enjoyment  thereof.  If  it  be  personal 
property,  the  person  or  persons  so  electing  shall  give  a  bond  to  the  state  in  the 
penalty  of  three  times  the  amount  of  such  tax,  with  such  sureties  as  the 
Bounty  judge  of  the  proper  county  may  approve,  conditioned  for  the  payment  of 
such  tax  and  interest  thereo>n,  at  such  time  and  period  as  the  person  or  persons 
beneficially  interested  therein  may  come  into  actual  possession  or  enjoyment 
of  such  property,  which  bond  shall  be  executed  and  filed,  and  a  full  return 
of  such  property  upon  oath  made  to  the  county  court  within  six  months  from 
the  date  of  transfer  thereof,  as  herein  provided,  and  such  bond  must  be  re- 
newed every  five  years.  (Laws  1903,  p.  49;  1  Lord's  Laws,  p.  6SO.) 

§  1050.    Bequest  to  Executor  In  Lieu  of  Compensation. 

Sec.  1204-.  Whenever  a  decedent  appoints  one  or  more  executors  or  trus- 
tees, and,  in  lieu  of  their  allowance  or  commission,  makes  a  bequest  or  devise 
of  property  to  them,  which  would  otherwise  be  liable  to  said  tax,  or  appoints 
them  his  residuary  legatees,  and  said  bequests,  devises,  or  residuary  legacies 
exceed  what  would  be  a  reasonable  compensation  for  their  services,  such  excess 
shall  be  liable  to  such  tax,  and  the  court  having  jurisdiction  of  their  accounts, 
upon  its  own.  motion,  or  on  the  application  of  the  state  treasurer,  shall  fix 
such  compensation.  (Laws  1903,  p.  49;  1  Lord's  Laws,  p.  680.) 

§  1051.    Jurisdiction  of  County  Court. 

Sec.  1205.  The  county  court  of  every  county  in  this  state  having  jurisdic- 
tion to  grant  letters  testamentary  or  of  administration  upon  the  estate  of  a 
decedent  whose  property  is  chargeable  with  any  tax  under  this  act,  or  to  give 
ancillary  letters  thereon,  or  to  appoint  a  trustee  of  such  estate,  or  any  part 
thereof,  shall  have  jurisdiction  to  hear  and  determine  all  questions  arising 
under  the  provisions  of  this  act,  and  to  do  any  act  in  relation  thereto  authorized 
by  law  to  be  done  by  such  court  in  other  matters  or  proceedings  coming  within 
his  jurisdiction;  and  if  two  or  more  county  courts  shall  be  entitled  to  exercise 
any  such  jurisdiction,  the  county  court  first  acquiring  jurisdiction  hereunder 
shall  retain  the  same  to  the  exclusion  of  every  other  county  court.  (Laws 
1903,  p.  49;  1  Lord's  Laws,  p.  680.) 

§  1052.     Notice  to  State  Treasurer  of  Transfer — Valuation  of  Property. 

Sec.  1206.  The  judge  of  the  county  court  having  jurisdiction  of  the  estate 
of  any  decedent  shall,  within  ten  days  after  the  filing  of  a  will  or  the  applica- 
tion for  letters  of  administration,  or  the  granting  of  letters  testamentary  or  of 
letters  of  administration,  if  in  his  opinion  said  estate  is  subject  to  a  tax  under 
any  of  the  provisions  of  this  act,  cause  the  county  clerk  to  send  to  the  treasurer 
of  the  state  a  certificate  of  the  filing  of  such  will  or  application,  or  the 
granting  of  such  letters  of  administration.  The  court  shall  thereupon,  and 
as  soon  as  practicable  after  the  granting  of  any  such  lett§rs;  proceed  to  ascer- 


G66  INHERITANCE  TAXATION. 

tain  and  determine  the  value  of  every  inheritance,  devise,  bequest,  or  legacy 
embraced  in  or  payable  out  of  the  estate  in  which  such  letters  are  granted, 
and  the  tax  due  thereon.  The  state  treasurer  shall  have  the  same  right  to 
apply  for  letters  of  administration  as  that  conferred  by  law  upon  creditors. 
(Laws  1903,  p.  49;  Laws  1909,  p.  60;  1  Lord's  Laws,  p.  680.) 

§  1053.    Duty  of  Executor  to  Make  Inventory  and  Appraisement. 

Sec.  1207.  It  shall  be  the  duty  of  the  executor,  administrator,  or  trustee  of 
every  estate,  within  one  month  from  the  date  of  his  appointment,  or,  if  a 
trustee,  from  the  acceptance  of  this  trust,  or,  if  necessary,  such  further  time 
as  the  county  clerk  or  judge  may  allow,  make  an  inventory,  verified  by  his 
own  oath,  of  all  the  real  and  personal  property  of  the  deceased  which  shall 
come  to  his  possession!  or  knowledge,  any  will  or  direction  of  the  decedent  to 
the  contrary  notwithstanding,  and  to  cause  the  same  to  be  appraised,  as  by 
law  required,  and  filed  with  the  clerk  of  the  court  having  jurisdiction  of  said 
estate.  (Laws  1903,  p.  49 ;  1  Lord's  Laws,  p.  681.) 

§  1054.    Extension  of  Time  for  Appraisement. 

Sec.  1208.  Whenever,  by  reason  of  the  complicated  nature  of  an  estate,  or 
by  reason  of  the  confused  condition  of  the  decedent's  affairs,  it  is  imprac- 
ticable for  the  executor,  administrator,  trustee,  OT  beneficiary  of  said  estate 
to  file  with  the  clerk  of  the  court  a  full,  complete,  and  itemized  inventory  of 
the  personal  assets  belonging  to  the  estate  within  the  time  required  by  statute 
for  filing  inventories  of  estates  of  decedents,  the  court  may,  upon  the  applica- 
tion of  such  representative  or  parties  in  interest,  extend  the  time  for  filing 
the  appraisement  for  a  period  not  to  exceed  three  months  beyond  the  time 
fixed  by  law,  or  such  further  time  as  may  be  necessary  upon,  good  cause 
shown.  (Laws  1903,  p.  49;  1  Lord's  Laws,  p.  681.) 

§  1055.    Inventory  and  Appraisement  to  be  Sent  to  State  Treasurer. 

See.  1209.  Every  executor  or  administrator,  or  trustee  of  any  estate  subject 
to  the  tax  herein  provided,  shall,  at  least  ten  days  prior  to  the  first  appraise- 
ment thereof,  as  provided  by  law,  notify  the  state  treasurer  in  writing  of  the 
time  and  place  of  such  appraisement,  and  shall  file  due  proof  of  such  notice 
with  a  copy  thereof  with  the  clerk  of  the  court  having  jurisdiction  of  such 
estate  or  trust.  Every  executor,  administrator,  or  trustee,  within  ten  days 
after  such  appraisement,  or  appraisement  of  any  beneficial  interest  or  reap- 
praisement  thereof,  and  before  payment  and  distribution  to  the  legatees  or  any 
parties  entitled  to  beneficiary  interest  therein,  shall  make  and  render  to  the 
said  state  treasurer  a  copy  of  the  said  inventory  and  appraisement,  duly  cer- 
tified as  such  by  the  clerk  of  the  court  having  jurisdiction  of  said  estate,  amj 
shall  also  make  and  file  with  the  said  state  treasurer  a  schedule,  list,  or  state- 
ment, in  duplicate,  of  the  amount  of  such  legacy  or  distributive  share,  together 
with  the  amount  of  tax  which  has  accrued  or  will  accrue  thereon,  verified 
by  his  oath  or  affirmation,  to  be  administered  and  certified  thereon  by  some 
magistrate  or  officer  having  lawful  power  to  administer  such  oaths,  in  such 
form  and  manner  as  may  be  prescribed  by  the  state  treasurer,  which  schedule, 
list,  or  statement  shall  contain  the  names  of  each  and  every  person  entitled 


OREGON  STATUTE.  667 

to  any  beneficiary  interest  therein,  together  with  the  clear  value  of  rocb 
interest,  as  found  and  determined  by  the  court  having  jurisdiction  of  said 
estate.  One  of  said  schedules  shall  be  kept  and  retained  by  the  state  treasurer, 
and  the  other  delivered  by  him  to  tho  secretary  of  state.  (Laws  1903,  p.  49; 
1  Lord's  Laws,  p.  681.) 

§  1056.    Court  may  Act  on  Appraisement  or  Eequlre  Another. 

Sec.  1210.  In  ascertaining  and  determining  the  value  of  any  inheritance, 
devise,  bequest,  or  legacy  embraced  in  or  payable  out  of  any  estate  or  trust, 
and  the  tax  due  thereon,  the  court  may  act  upon  the  inventory  and  appraise- 
ment of  such  estate  as  prepared  and  filed  by  the  executor,  administrator,  or 
trustee  thereof,  pursuant  to  law,  or  it  may  require  an  appraisement  or  reap- 
praisement,  as  herein  provided,  of  the  true  and  full  value  of  the  property 
embraced  in  any  inheritance,  devise,  bequest,  or  legacy,  subject  to  the  payment 
of  any  tax  imposed  by  this  act.  (Laws  1903,  p.  49;  1  Lord's  Laws,  p.  682.) 

§  1057.    Appointment  of  Appraisers. 

Sec.  1211.  The  county  court  may,  in  any  matter  mentioned  in  sections  1206, 
1207,  and  1208,  or  if  no  inventory  or  appraisement  has  been  made,  or  if  it 
deem  it  for  any  cause  insufficient  or  inadequate,  either  upon  its  own  motion  or 
upon  the  application  of  any  interested  party,  including  the  state  treasurer, 
and  as  often  as  and  when  occasion  requires,  appoint  one  or  more  persons  as 
appraisers  to  appraise  the  true  and  full  value  of  the  property  embraced  in  any 
inheritance,  devise,  bequest,  or  legacy  subject  to  the  payment  of  any  tax 
imposed  by  this  act.  (Laws  1903,  p.  49;  1  Lord's  Laws,  p.  682.) 

§  1058.     Time  for  Appraisement — Life  and  Future  or  Contingent  Estates. 

Sec.  1212.  Every  inheritance,  devise,  bequest,  legacy,  or  gift,  upon  which 
a  tax  is  imposed  under  this  title,  shall  be  appraised  at  its  full  and  true  value 
immediately  upon  the  death  of  the  decedent,  or  as  soon  thereafter  as  may  be 
practicable;  provided,  however,  that  when  such  devise,  bequest,  legacy,  or  gift 
shall  be  of  such  a  nature  that  its  full  and  true  value  cannot  be  ascertained 
at  such  time,  it  shall  be  appraised  in  like  manner  at  the  time  when  such  value 
first  becomes  ascertainable.  The  value  of  every  future  or  contingent  or 
limited  estate,  income,  interest,  or  annuity  dependent  upon  any  life  or  lives 
in  being  shall  be  determined  by  the  rules  or  standards  of  mortality,  and  of 
value  commonly  used  by  actuaries'  combined  experience  tables,  except  that 
the  rates  of  interest  on  computing  the  present  value  of  all  future  and  con- 
tingent interests  or  estates  shall  be  four  per  centum  per  annum  interest. 
(Laws  1903,  p.  49;  1  Lord's  Laws,  p.  682.) 

§  1059.    Appraisement — Time  and  Place — Fees  of  Appraiser. 

Sec,  1213.  The  county  court  shall  by  order  fix  the  time  and  place  when 
the  appraisers  appointed  under  the  provisions  of  section  1210  [1211]  shall 
make  said  appraisement.  The  county  clerk  shall  forthwith  give  notice  to  the 
state  treasurer,  and  to  all  persons  known  to  have  a  claim  or  interest  in  tho 
property,  inheritance,  devise,  bequest,  legacy,  or  gift  to  be  appraised,  and 
to  such  persons  as  the  probate  court  may  by  order  direct,  of  the  time  and 


668  INHERITANCE   TAXATION. 

place  when  said  appraisers  will  make  such  appraisal.  Such  notice  shall  be 
given  by  mail.  They  shall,  at  such  time  and  place,  appraise  the  same  at  its 
full  and  true  value,  as  herein  prescribed,  and  for  that  purpose  the  said  ap- 
praisers are  authorized  to  issue  subpoenas  and  to  compel  the  attendance  of 
witnesses  before  them,  and  to  make  [take]  evidence  of  such  witnesses  under 
oath  concerning  such  property  and  the  value  thereof,  and  they  shall  make 
report  thereof,  and  of  such  value  in  writing  to  the  said  county  court,  together 
with  the  testimony  of  the  witnesses  examined,  and  such  other  facts  in  relation 
thereto,  and  to  the  said  matter  as  said  county  court  may  order  or  require. 
Every  appraiser  shall  be  entitled  to  compensation  at  the  rate  of  $3.00  per  day 
for  each  day  actually  and  necessarily  employed  in  such  appraisal,  and  his 
actual  and  necessary  traveling  expenses,  and  such  witnesses,  and  the  officer 
or  person  serving  any  such  subpoena,  shall  be  entitled  to  the  same  fees  as 
those  allowed  witnesses  or  sheriffs  for  similar  services  in  courts  of  record. 
The  compensation  and  fees  claimed  by  any  person  for  services  performed 
under  this  act  shall  be  approved  by  the  county  judge,  who  shall  certify  the 
amount  thereof,  as  so  approved,  to  the  secretary  of  state,  who  shall  examine 
the  same,  and,  if  found  correct,  he  shall  draw  his  warrant  upon  the  state 
treasurer  for  the  amount  thereof  in  favor  of  the  person  entitled  thereto,  pay- 
able from  the  inheritance,  tax  fund.  (Laws  1903,  p.  49;  1  Lord's  Laws,  p. 
683.) 

§  1060.    Report  of  Appraisers— Filing  in  County  Court. 

Sec.  1214.  The  report  of  the  appraisers  shall  be  filed  with  the  county 
court  and  from  such  report,  and  other  proof  relating  to  any  such  estate  before 
the  county  court,  the  court  shall  forthwith,  as  of  course,  determine  the  full 
and  true  value  of  all  such  estates  and  the  amount  of  the  tax  to  which  the  same 
are  liable;  or  the  county  court  may  so  determine  the  full  and  true  value  of  all 
such  estates,  and  the  amount  of  tax  to  which  the  same  are  liable,  without  ap- 
pointing appraisers,  as  herein  provided.  (Laws  1903,  p.  49;  1  Lord's  Laws, 
p.  683.) 

§  1061.     Notice  of  Determination  of  Value. 

Sec.  1215.  The  county  court  shall  immediately  give  notice  upon  the  de- 
termination of  the  value  of  any  inheritance,  devise,  bequest,  legacy,  or 
gift,  which  is  taxable  under  this  act  and  of  the  tax  to  which  it  is  liable, 
to  all  parties  known  to  be  interested  therein,  including  the  secretary  of 
state  and  the  state  treasurer.  Such  notices  shall  be  given  by  mail.  (Laws 
1903,  p.  49;  1  Lord's  Laws,  p.  683.) 

§  1062.     Reappraisement  and  Assessment. 

Sec.  1216.  Within  thirty  days  after  the  assessment  and  determination 
by  the  county  court  of  any  tax  imposed  by  this  act,  the  state  treasurer, 
or  any  person  interested  therein,  may  file  with  the  said  court  objections 
thereto  in  writing,  and  praying  for  a  reassessment  and  redetermination  of 
such  tax.  Upon  any  objection  being  so  filed,  the  county  court  shall  appoint 
a  time  for  the  hearing  thereof,  and  cause  notice  of  such  hearing  to  be  given 
by  mail  to  the  state  treasurer,  and  all  parties  interested,  at  least  ten  days 


OREGON  STATUTE.  663 

before  the  hearing  thereof;  at  the  time  appointed  in  such  notice,  the  court 
shall  proceed  to  hear  such  objection,  and  any  evidence  which  may  be 
offered  in  support  thereof  or  opposition  thereto;  and  if,  after  such  hearing, 
the  said  court  finds  the  amount  at  which  the  property  is  appraised  is  its 
market  value,  and  the  appraisement  was  made  fairly  and  in  good  faith,  it 
shall  approve  such  appraisement;  but  if  it  finds  that  the  appraisement  was 
made  at  a  greater  or  less  sum  than  the  market  value  ot  the  property,  or 
that  the  same  was  not  made  fairly  or  in  good  faith,  it  shall,  by  order,  set 
aside  the  appraisement  and  determine  such  value.  The  state  treasurer,  or 
anyone  interested  in  the  property  appraised,  may  appeal  to  the  circuit  court 
from  the  judgment,  order,  and  decree  of  the  county  court  in  the  premises, 
and  may  appeal  to  the  supreme  court  from  the  order,  judgment,  or  decree 
of  the  circuit  court  in  the  same  manner  as  is  provided  by  law  for  appeals 
from  judgments  and  orders  of  the  county  court  and  circuit  court.  All  evi- 
dence heard  on  such  reappraisement  shall  be  reduced  to  writing  and  filed 
with  the  clerk  of  the  court.  All  appeals  taken  from  the  judgment  or  decree 
of  the  court  shall  be  had  and  tried  on  appeal  in  the  same  manner  and  with 
like  effect  as  appeals  in  suits  in  equity  are  now  heard  and  tried.  (Laws 
1903,  p.  49;  1  Lord's  Laws,  p.  684.) 

§  1063.     Duty  of  Treasurer  When  Tax  Unpaid. 

Bee.  1217.  If  the  state  treasurer  shall  have  reason  to  believe  that  any 
tax  is  due  and  unpaid  under  this  act,  after  the  refusal  or  neglect  of  the 
persons  liable  therefor  to  pay  the  same,  he  shall  notify  the  prosecuting 
attorney  of  the  county  in  writing  of  such  failure  or  neglect,  and  such 
prosecuting  attorney,  if  he  have  probable  cause  to  believe  that  such  tax  is 
due  and  unpaid,  shall  apply  to  the  county  court  for  a  citation  citing  the 
persons  liable  to  pay  such  tax  to  appear  before  the  court  on  the  day  speci- 
fied, not  more  than  thirty  days  from  the  date  of  such  citation,  unless  tie 
court,  for  good  cause  shown,  grants  a  longer  time,  and  show  cause  why  the 
tax  should  not  be  paid.  The  county  court,  upon  such  application,  and 
whenever  it  shall  appear  to  him  that  any  such  tax  accruing  under  this  act 
has  not  been  paid  as  required  by  law,  shall  issue  such  citation,  and  a  ser^ 
vice  of  such  citation,  and  the  time,  manner,  and  proof  thereof,  and  the 
hearing  and  determination  thereon,  shall  conform  as  near  as  may  be  to  the 
provisions  of  the  probate  practice;  provided,  that  where  no  provision  is 
made  for  manner  of  such  service  or  proof  of  same,  the  court  or  judge,  at 
the  time  such  order  or  citation  is  issued,  shall  direct  the  manner  of  giving 
notice  and  proof  of  the  same;  and  whenever  it  shall  appear  that  any  such 
tax  is  due  and  payable  and  the  payment  thereof  cannot  be  enforced  under 
the  provisions  of  this  act  in  said  county  court,  the  person  or  corporation 
from  whom  the  same  is  due  is  hereby  made  liable  to  the  state  for  the 
amount  of  suc'h  tax,  and  it  shall  be  the  duty  of  the  prosecuting  attorney  of 
the  proper  county  to  sue  for,  in  the  name  of  the  state,  and  enforce  the 
collection  of  such  tax;  and  all  taxes  so  collected  shall  be  forthwith  paid 
into  the  inheritance  tax  fund  of  the  state.  It  shall  be  the  duty  of  said 
prosecuting  attorney  to  appear  for  and  represent  the  state  treasurer  on  the 
hearing  of  such  citation,  or  of  any  other  hearing.  Whenever  the  county 


670  INHERITANCE   TAXATION. 

judge  shall  certify  that  there  was  probable  cause  for  issuing  a  citation  and 
taking  the  proceeding  specified  in  the  section,  the  state  treasurer  shall  file 
with  the  secretary  of  state  a  duly  verified  itemized  account  of  all  expenses 
incurred  for  the  service  of  the  citation,  and  other  lawful  disbursements  not 
otherwise  paid,  and  the  secretary  of  state  shall  thereupon  draw  his  warrant 
upon  the  state  treasurer  for  the  payment  thereof,  and  in  favor  of  said 
treasurer,  payable  from  the  inheritance  tax  fund.  (Laws  1903,  p.  48;  1 
Lord's  Laws,  p.  684.) 

§  1064.     Books  and  Forms  to  be  Furnished  by  Secretary  of  State — Entries 
by  Courts. 

Sec.  1218.  The  secretary  of  state  shall  furnish  to  each  county  court  a 
book,  which  shall  be  a  public  record,  and  in  which  shall  be  entered  by  the 
judge  or  clerk  of  said  court,  under  the  direction  of  said  judge,  the  name  of 
every  decedent  upon  whose  estate  an  application  has  been  made  for  the 
issue  of  letters  of  administration  or  letters  testamentary,  or  ancillary 
letters;  the  date  and  place  of  death  of  such  decedent;  the  estimated  value 
of  the  property  of  such  decedent;  names  and  places  of  residence  and  rela- 
tionship to  decedent  of  the  heirs  at  law  of  such  decedent;  the  names  and 
places  of  residence  of  the  legatees,  devisees,  and  other  beneficiaries  in  any 
will  of  such  decedent;  the  amount  of  each  legacy,  and  the  estimated  value 
of  any  property  devised  therein,  and  to  whom  devised.  These  entries  shall 
be  made  from  data  contained  in  the  papers  filed  on  any  such  application,  or 
in  any  proceeding  relating  to  the  estate  of  the  deceased.  The  county  judge, 
or  the  clerk  of  the  court  under  his  direction,  shall  also  enter  in  such  book 
the  amount  of  the  property  of  any  such  decedent,  as  shown  by  the  inventory 
thereof,  when  made  and  filed  in  his  office,  and  the  returns  made  by  any 
appraiser  appointed  by  him  under  this  act,  and  the  value  of  all  inheritances, 
devises,  bequests,  legacies,  and  gifts  inherited  from  such  decedent,  or  given 
by  such  decedent  in  his  will,  or  otherwise,  as  fixed  by  the  probate  court; 
and  the  tax  assessed  thereon,  and  the  amounts  of  any  receipts  for  payment 
thereof  filed  in  said  court.  The  secretary  of  state  shall  also  furnish  to 
each  county  court  forms  for  the  reports  to  be  made  by  such  county  judge, 
which  stall  correspond  with  the  entry  to  be  made  in  such  book.  He  shall 
also  furnish,  for  the  use  of  the  courts  and  appraisers  throughout  the  state, 
tables  showing  the  average  expectancy  of  life,  and  the  value  of  annuities 
of  life  and  term  estates,  and  the  present  worth  or  value  of  remainders  and 
reversions,  as  prescribed  in  section  1210  [1212].  The  taxable  value  of  life 
or  term,  deferred  or  future  estates,  shall  be  computed  at  the  rate  of  four 
per  cent  per  annum.  (Laws  1903,  p.  49;  1  Lord's  Laws,  p.  685.) 

§  1065.     Reports  by  Judges  and  Custodian  of  Deeds  and  Records. 

Sec.  1219.  Each  county  judge  shall,  on  the  first  day  of  January,  April, 
July,  and  October  of  each  year,  under  the  seal  of  the  court,  make  a  report, 
in  duplicate,  upon  the  forms  furnished  by  the  secretary  of  state,  containing 
all  the  data  and  matters  required  to  be  entered  in  such  book,  one  of  which 
shall  be  immediately  transmitted  to  the  state  treasurer,  and  the  other  to 
the  secretary  of  state.  The  county  clerk,  or  recorder  of  conveyances,  of 


OREGON  STATUTE.  671 

each  county  having  custody  of  records  of  deeds  shall,  at  the  same  time, 
make  reports,  in  duplicate,  containing  a  statement  of  any  conveyance 
filed  or  recorded  in  his  office  of  any  property  which  appears  to  have  been 
made  or  intended  to  take  effect  in  possession  or  enjoyment  after  the  death 
of  the  grantor  or  vendor,  with  the  name  and  place  of  residence  of  the  vendor 
and  vendee,  and  a  description  of  the  property  transferred,  as  shown  by  such 
instrument,  one  of  which  duplicates  shall  be  immediately  transmitted  to 
the  state  treasurer,  and  the  other  to  the  secretary  of  state.  (Laws  1903, 
p.  49;  1  Lord's  Laws,  p.  686.) 

§  1066.    Eeceipts  to  be  Furnished  by  State  Treasurer. 

Sec.  1220.  It  shall  be  the  duty  of  the  state  treasurer,  upon  the  payment 
of  the  sum  of  twenty-five  cents,  to  issue  to  any  person  demanding  the  same, 
a  copy  of  a  receipt  that  may  have  been  given  by  such  treasurer  for  the  pay- 
ment of  any  tax  under  this  act,  which  receipt  shall  designate  upon  what 
real  property,  if  any,  of  which  any  decedent  may  have  died  seised,  such 
tax  shall  have  been  paid,  by  whom  paid,  and  whether  in  full  of  such  tax. 
Such  receipts  may  be  recorded  in  the  office  of  the  officers  having  control  and 
charge  of  the  deed  records  of  the  county  in  which  such  property  is  situated, 
in  a  book  to  be  kept  by  him  for  that  purpose,  which  shall  be  labeled  "trans- 
fer tax."  (Laws  1903,  p.  49;  1  Lord's  Laws,  p.  686.) 

§  1067.    Recording  of  Receipts. 

Sec.  1221.  The  county  commissioners  of  each  county  shall  provide  a  book 
for  the  recording  of  said  receipts.  The  officer  of  each  county  having  con- 
trol and  charge  of  the  deed  records  of  each  county  shall  charge  and  collect, 
at  the  time  said  receipt  is  presented  for  record,  for  the  use  of  the  county, 
the  sum  of  twenty-five  cents  for  recording  each  receipt.  The  sum  paid  to 
the  state  treasurer  for  copies  of  receipts  shall  be  paid  by  him  into  the 
inheritance  tax  fund.  (Laws  1903,  p.  49;  1  Lord's  Laws,  p.  686.) 

§  1068.     Compromise  or  Settlement  of  Tax. 

Sec.  1222.  Whenever  an  estate  charged,  or  sought  to  be  charged,  with 
the  inheritance  tax,  is  of  such  a  nature  or  is  so  disposed  that  the  liability 
of  the  estate  is  doubtful,  or  the  value  thereof  cannot  with  reasonable  cer- 
tainty be  ascertained  under  the  provisions  of  law,  the  state  treasurer  may, 
with  the  written  approval  of  the  attorney  general,  which  approval  shall 
set  forth  the  reasons  therefor,  compromise  with  the  beneficiaries  or  repre- 
sentatives of  such  estates,  and  compound  the  tax  thereon;  but  said  settle- 
ment must  be  approved  by  the  county  court  having  jurisdiction  of  the  estate, 
and  after  such  approval  the  payment  of  the  amount  of  the  taxes  so  agreed 
upon  shall  discharge  the  lien  against  the  property  of  the  estate.  (Laws 
1903,  p.  49;  1  Lord's  Laws,  p.  686.) 

§  1069.     Reports  to  be  Furnished  by  Executor. 

Sec.  1223.  Administrators,  executors,  or  trustees  of  the  estates  subject 
to  the  inheritance  tax  shall,  when  demanded  by  the  state  treasurer,  send 
to  Mich  treasurer  certified  copies  of  such  parts  of  their  reports  as  may  be 


672  INHERITANCE   TAXATION. 

demanded  by  him,  and,  upon  refusal  of  said  parties  to  comply  with  the 
treasurer's  demand,  it  is  the  duty  of  the  clerk  of  the  court  to  comply  with 
such  demand,  and  the  expense  of  making  such  copies  and  transcripts  shall 
be  charged  against  the  estate,  as  are  other  costs  in  probate.  (Laws  1903,. 
p.  49;  1  Lord's  Laws,  p.  687.) 

§  1070.    Appellate  Proceedings. 

Sec.  1224.  Appeals  may  be  taken  to  the  circuit  court  from  all  final 
orders,  judgments,  and  decrees,  entered  under  the  provisions  of  this  act, 
in  the  same  manner  and  with  the  same  effect  as  other  appeals  are  taken 
from  final  orders  and  judgments  made  or  rendered  by  the  county  court.  All 
such  appeals  shall  be  had  and  tried  in  the  same  manner  and  with  like  effect 
as  appeals  in  suits  in  equity  are  now  heard  and  tried.  (Laws  19.03,  p.  49;. 
1  Lord's  Laws,  p.  687.) 

§  1071.    Failure  to  Produce  Will — Penalty. 

Sec.  1225.  Any  person  who  shall  willfully  sequester  or  secrete  any  last 
will  or  testament  of  a  person  then  deceased,  or  who,  having  the  custody 
of  any  such  will  and  testament,  shall  willfully  fail  or  neglect  to  produce 
and  deliver  the  same  to  the  judge  of  the  county  court  having  jurisdiction 
of  its  probate,  or  to  any  executor  named  therein,  within  a  reasonable  time 
after  the  death  of  the  testator  thereof,  with  intention  to  injure  or  defraud 
any  person  interested  therein,  shall  be  punished  by  imprisonment  in  the 
county  jail  not  more  than  one  year  or  by  fine  not  exceeding  $500.  (Laws 
1903,  p.  49;  1  Lord's  Laws,  p.  687.) 

§  1072.    Administering  Personal  Estate  Without  Proving  Will — Penalty. 

Sec.  1226.  Every  person  who  shall  administer  the  personal  estate  of 
any  person  dying  after  the  passage  of  this  act,  or  any  part  thereof,  without 
proving  the  will  of  the  deceased  or  taking  out  letters  of  administration  of 
such  personal  estate  within  six  calendar  months  after  the  death  of  the 
person  so  dying,  shall  be  punished  by  imprisonment  in  the  county  jail  not 
more  than  one  year  or  by  a  fine  not  exceeding  $500.  (Laws  1903,  p.  49;. 
1  Lord's  Laws,  p.  687.) 

§  1073.    Notice  to  State  Treasurer  of  Transfer. 

Sec.  1227.  Whenever  any  of  the  real  estate  of  which  any  decedent  may 
die  seised  shall  pass  to  any  body  politic  or  corporate,  or  to  any  person  or 
persons,  or  in  trust  for  them,  or  some  of  them,  it  shall  be  the  duty  of  the 
executor,  administrator,  or  trustee  of  such  decedent  to  give  information 
thereof  in  writing  to  the  state  treasurer  within  three  months  after  they 
undertake  the  execution  of  their  expected  duties,  or,  if  the  fact  be  not  known 
to  them  within  that  period,  then  within  one  month  after  the  same  shall 

have  come  to  their  knowledge.     (Laws  1903,  p.  49;  1  Lord's  Laws,  p.  687.)- 

• 

§  1074.    Property  Subject  to  Tax. 

Sec.  1228.  Except  as  to  real  property  located  outside  of  the  state  pass- 
ing in  fee  from  the  decedent  owner,  the  tax  imposed  under  section  1192  shall 
hereafter  be  assessed  against  and  be  collected  from  property  of  every  kindr 


OREGON  STATUTE.  673 

which,  at  the  death  of  the  decedent  owner,  is  subject  to,  or  thereafter,  for 
the  purpose  of  distribution,  is  brought*  into  this  state  and  becomes  subject 
to  the  jurisdiction  of  the  courts  of  this  state  for  distributive  purposes,  or 
which  was  owned  by  any  decedent  domiciled  within  the  state  at  the  time 
of  the  death  of  such  decedent,  even  though  the  property  of  said  decedent 
so  domiciled  was  situated  outside  of  the  state.  (Laws  1903,  p.  49;  1  Lord's 
Laws,  p.  688.) 

§  1075.    Property  in  State  Belonging  to  Nonresident  Decedent. 

Sec.  1229.  In  case  of  any  property  belonging  to  a  foreign  estate,  which 
estate  in  whole  or  in  part  is  liable  to  pay  an  inheritance  tax  in  this  state, 
the  said  tax  shall  be  assessed  upon  the  market  value  of  said  property  re- 
maining after  the  payment  of  such  debts  and  expenses  as  are  chargeable  to 
the  property  under  the  laws  of  this  state.  In  the  event  that  the  executor, 
administrator,  or  trustee  of  such  foreign  estate  files  with  the  clerk  of  the 
court  having  ancillary  jurisdiction,  and  with  the  state  treasurer,  duly  certi- 
fied statements  exhibiting  the  true  market  value  of  the  entire  estate  of 
the  decedent  owner,  and  the  indebtedness  for  which  the  said  estate  has 
been  adjudged  liable,  which  statements  shall  be  duly  attested  by  the  judge 
of  the  court  having  original  jurisdiction,  the  beneficiaries  of  said  estate 
shall  then  be  entitled  to  have  deducted  such  proportion  of  the  said  indebted- 
ness of  the  decedent  from  the  value  of  the  property  as  the  value  of  the 
property  within  this  state  bears  to  the  value  of  the  entire  estate.  (Laws 
1903,  p.  49;  1  Lord's  Laws,  p.  688.) 

§  1076.    Compensation  of  Officers. 

Sec.  1230.  Except  as  otherwise  provided  in  this  act,  no  officer  shall 
receive  any  additional  compensation  to  that  now  allowed  him  by  law,  by 
reason  of  any  duties  imposed  upon  him  by  the  provisions  of  this  act.  (Laws 
1903,  p.  49;  1  Lord's  Laws,  p.  686.) 

§  1077.    Payment  of  Expenses  and  Disbursements. 

Sec.  1231.  The  state  treasurer  shall  file  with  the  secretary  of  state  a  duly 
verified  itemized  account  of  all  expenses  incurred  and  disbursements  made  by 
him  in  examining  or  having  examined  any  securities  under  section  1202,  or 
any  other  expense  actually  incurred  by  him  in  enforcing  or  carrying  out  thi> 
provisions  of  this  act,  and  the  secretary  of  state  shall  thereupon  draw  his 
warrant  upon  the  state  treasurer  for  the  payment  thereof  and  in  favor  of 
said  treasurer,  payable  from  the  inheritance  tax  fund.  (Laws  1903,  p.  49; 
1  Lord's  Laws,  p.  688.) 

§  1078.    Appraiser  Taking  More  Than  Regular  Fees — Penalty. 

Sec.  1232.  Any  appraiser  appointed  by  this  act  who  shall  take  any  fee  or 
reward  from  any  executor,  administrator,  trustee,  legatee,  next  of  kin,  or  heir 
of  any  decedent,  or  from  any  other  person  liable  to  pay  said  tax  or  any  por- 
tion thereof,  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  in 
any  court  having  jurisdiction  of  misdemeanors,  he  shall  be  fined  not  less 
than  $250  nor  more  than  $500,  and  imprisoned  not  exceeding  ninety  days, 
and,  in  addition  thereto,  the  county  judge  shall  dismiss  Mm  from  such  ser- 
vice. (Laws  1903,  p.  49;  1  Lord's  Laws,  p.  689.) 
43 


674  INHERITANCE  TAXATION. 


CHAPTER  L. 
PENNSYLVANIA  STATUTE. 

(1  Purdon's  Digest,  pp.  603-610;  Laws  of  1905,  p.  258;  Laws  of  1911,  p.  IIS.) 

§  1079.  Estates  Subject  to  Tax — Bates. 

§  1080.  Estates  Subject  to  Tax— Rates. 

§  1081.  Executor  not  Discharged  Until  Tax  Paid. 

§  1082.  Transfers  not  Subject  to  Tax. 

§  1083.  Estates  of  Limited  Value  Exempt. 

§  1084.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  1085.  Estate  for  Years  or  for  Life  and  Remainder. 

§  1086.  Interest  and  Discount. 

§  1087.  Collection  of  Tax  by  Executor. 

§  1088.  Legacies  for  Limited  Period  or  upon  Contingency. 

§  1089.  Legacy  Charged  upon  Beal  Estate. 

§  1090.  Notice  to  County  Begister  of  Transfer. 

§  1091.  Eeceipts  for  Payment. 

§  1092.  Transfer  of  Stocks  or  Loans  by  Foreign  Executor, 

§  1093.  Befund  of  Tax. 

§  1094.  Appraisers  and  Appraisement. 

§  1095.  Compensation  of  Appraisers. 

§  1096.  Appointment  of  Expert  as  Appraiser. 

§  1097.  Appraiser  Taking  More  Than  Begular  Fee — Penalty. 

§  1098.  Becords  to  be  Kept  by  Begister  of  Wills. 

§  1099.  Eeport  by  Begister  to  Auditor  General. 

§  1100.  Proceedings  to  Enforce  Tax. 

§  1101.  Citation  to  Parties  in  Cas«  of  Unpaid  Tax. 

§  1102.  Employment  of  Attorney  to  Sue  for  Tax. 

§  1103.  Compensation  of  Begister  for  Collecting  Tax. 

§  1104.  Bond  of  Eegister. 

§  1105.  Collection  by  County  Treasurer. 

§  1106.  Eeturns  and  Payment  by  Begister  to  State  Treasurer. 

§  1107.  Lien  of  Tax. 

§  1108.  Befund  of  Tax  Erroneously  Paid. 

§  1109.  Application  for  Eepayment  of  Tax. 

§  1110.  Eefund  of  Tax  When  Estate  was  not  Subject  Thereto. 

§  1111.  Bequest  for  Burial  Lot. 

§  1112.  Time  When  Statute  Takes  Effect. 

§  1079.    Estates  Subject  to  Tax — Rates. 

Sec.  1.  All  estates,  real,  personal  and  mixed,  of  every  kind  whatsoever, 
situated  within  this  state,  whether  the  person  or  persons  dying  seised 
thereof  be  domiciled  within  or  out  of  this  state,  and  all  such  estates  situated 
in  another  state,  territory  or  country,  when  the  person  or  persons,  dying 
seised  thereof,  shall  have  their  domicile  within  this  commonwealth,  passing 


PENNSYLVANIA  STATUTE.  675 

from  any  person,  who  may  die  seised  or  possessed  of  such  estates,  either  by 
•will,  or  under  the  intestate  laws  of  this  state,  or  any  part  of  such  estate 
or  estates,  or  interest  therein,  transferred  by  deed,  grant,  bargain  or  sale 
made  or  intended  to  take  effect,  in  possession  or  enjoyment  after  the  death 
of  the  grantor  or  bargainer,  to  any  person  or  persons,  or  to  bodies  corporate 
or  politic,  in  trust  or  otherwise,  other  than  to  or  for  the  use  of  father, 
mother,  husband,  wife,  children,  and  lineal  descendants  born  in  lawful 
wedlock,  children  of  a  former  husband  or  wife,  or  the  wife  or  widow  of  the 
son  of  the  person  dying  seised  or  possessed  thereof,  shall  be  and  they  are 
hereby  made  subject  to  a  tax  of  five  dollars  on  every  hundred  dollars  of  the 
clear  value  of  such  estate  or  estates,  and  at  and  after  the  same  rate  for  any 
less  amount  to  be  paid  to  the  use  of  the  commonwealth;  and  all  owners  of 
such  estates,  and  all  executors  and  administrators  and  their  sureties,  shall 
only  be  discharged  from  liability  for  the  amount  of  such  taxes  or  duties,  the 
settlement  of  which  they  may  be  charged  with,  by  having  paid  the  same 
over  for  the  use  aforesaid,  as  hereinafter  directed;  provided,  that  no  estate 
which  may  be  valued  at  a  less  sum  than  two  hundred  and  fifty  dollars  shall 
be  subject  to  the  duty  or  tax.  (Laws  1905,  p.  258;  P.  L.  79;  Pur.  Dig.,  vol. 
1,  p.  603.) 

§  1080.    Estates  Subject  to  Tax — Rates. 

Sec.  la.  All  estates,  real,  personal  and  mixed,  of  every  kind  whatso- 
ever, situated  within  this  state,  whether  the  person  or  persons  dying  seised 
thereof  be  domiciled  within  or  out  of  this  state,  and  all  such  estates  situated 
in  another  state,  territory  or  country,  when  the  person  or  persons  dying 
seised  thereof  shall  have  their  domicile  within  this  commonwealth,  passing 
from  any  person  who  may  die  seited  or  possessed  of  such  estates,  either  by 
will  or  under  the  intestate  laws  of  this  state,  or  any  part  of  such  estate 
or  estates,  or  interest  therein,  transferred  by  deed,  grant,  bargain  or  sale, 
made  or  intended  to  take  effect,  in  possession  or  enjoyment  after  the  death 
of  the  grantor  or  bargainor,  to  any  person  or  persons,  or  to  bodies  corporate 
or  politic,  in  trust  or  otherwise,  other  than  to  or  for  the  use  of  father, 
mother,  husband,  wife,  children,  and  lineal  descendants  born  in  lawful  wed- 
lock, children  of  a  former  husband  or  wife,  or  the  wife  or  widow  of  the  son 
of  the  person  dying  seised  or  possessed  thereof,  shall  be,  and  they  are  hereby 
made,  subject  to  a  tax  of  five  dollars  on  every  hundTed  dollars  of  the  clear 
value  of  such  estate  or  estates,  and  at  and  after  the  same  rate  for  any  less 
amount,  to  be  paid  to  the  use  of  the  commonwealth;  and  all  owners  of  such 
estates,  and  all  executors  and  administrators  and  their  sureties,  shall  only 
be  discharged  from  liability  for  the  amount  of  such  taxes  or  duties,  the 
settlement  of  which  they  may  be  charged  with,  by  having  paid  the  same 
over  for  the  use  aforesaid',  as  hereinafter  directed;  provided,  that  no  estate 
which  may  be  valued  at  a  less  sum  than  two  hundred  and  fifty  dollars  shall 
be  subject  to  the  duty  or  tax.  (Laws  1905,  p.  259;  P.  L.  79;  Pur.  Dig.,  vol. 
1,  p.  603.) 

§  1081.     Executor  not  Discharged  Until  Tax  Paid. 

Sec.  2.  All  owners  of  such  estates,  and  all  executors  and  administrators 
and  their  sureties,  shall  only  be  discharged  from  liability  for  the  amount 


676  INHERITANCE   TAXATION. 

of  such  taxes  or  duties,  the  settlement  of  which  they  may  be  charged  with, 
by  having  paid  the  same  over  for  the  use  aforesaid,  as  hereinafter  directed. 
(P.  L.  70;  Pur.  Dig.,  vol.  1,  p.  605.) 

§  1082.     Transfers  not  Subject  to  Tax. 

Sec.  2a.  All  estates,  real,  personal  and  mixed,  of  every  kind  whatsoever, 
situated  within  this  state,  whether  the  person  or  persons  dying  seised 
thereof  be  domiciled  within  or  out  of  this  state;  and  all  such  estates  situ- 
ated in  another  state,  territory,  or  country,  when  the  person  or  persons  dying 
seised  thereof  shall  have  their  domicile  within  this  commonwealth;  passing 
from  any  adopted  parent,  who  may  die  seised  or  possessed  of  such  estates, 
either  by  will  or  under  the  intestate  laws  of  this  state,  or  any  part  of  such 
estate  or  estates,  or  interest  therein,  transferred  by  deed,  grant,  bargain,  or 
sale,  made  or  intended  to  take  effect  in  possession  or  enjoyment  after  the 
death  of  the  grantor  or  bargainer,  to  or  for  the  use  of  any  legally  adopted 
child  or  any  legally  adopted  children, — shall  not  be  subject  to  the  collateral 
inheritance  tax  of  five  dollars  on  every  hundred  dollars  of  the  clear  value 
of  such  estate  or  estates,  to  the  use  of  the  commonwealth.  All  acts  and 
parts  of  acts  inconsistent  herewith  be  and  the  same  are  hereby  repealed. 
Approved  the  5th  day  of  May,  1911.  (Laws  1911,  p.  112.) 

§  1083.    Estates  of  Limited  Value  Exempt. 

Sec.  3.  No  estate  which  may  be  valued  at  a  less  sum  than  two  hundred 
and  fifty  dollars  shall  be  subject  to  the  duty  or  tax.  (P.  L.  79;  Pur.  Dig., 
vol.  1,  p.  605.) 

§  1084.    Bequest  to  Executor  in  Lieu  of  Compensation. 

Sec.  4.  Where  a  testator  appoints  or  names  one  or  more  executors,  and 
makes  a  bequest  or  devise  of  property  to  them,  in  lieu  of  their  commissions 
or  allowances,  or  appoints  them  his  residuary  legatees,  and  said  bequests, 
devises  or  residuary  legacies  exceed  what  would  be  a  fair  compensation  for 
their  services  such  excess  shall  be  subject  to  the  payment  of  the  collateral 
inheritance  tax;  the  rate  of  compensation  to  be  fixed  by  the  proper  courts 
having  jurisdiction  in  the  case.  (P.  L.  79;  Pur.  Dig.,  vol.  1,  p.  605.) 

§  1085.    Estate  for  Years  or  for  Life  and  Remainder. 

See.  5.  In  all  cases  where  there  has  been  or  shall  be  a  devise,  descent 
or  bequest  to  collateral  relatives  or  strangers,  liable  to  the  collateral  in- 
heritance tax,  to  take  effect  in  possession,  or  come  into  actual  enjoyment 
after  the  expiration  of  one  or  more  life  estates,  or  a  period  of  years,  the 
tax  on  such  estates  shall  not  be  payable,  nor  interest  begin  to  run  thereon, 
until  the  person  or  persons  liable  for  the  same  shall  come  into  actual  posses- 
sion of  such  estate,  by  th«  termination  of  the  estates  for  life  or  years,  and 
the  tax  shall  be  assessed  upon  the  value  of  the  estate  at  the  time  the  right 
of  possession  accrues  to  the  owner  as  aforesaid;  provided,  that  the  owner 
shall  have  the  right  to  pay  the  tax  at  any  time  prior  to  his  coming  into 
possession  and,  in  such  cases,  the  tax  shall  be  assessed  on  the  value  of  the 
estate  at  the  time  of  the  payment  of  the  tax,  after  deducting  the  value  of 


PENNSYLVANIA  STATUTE.  677 

the  life  estate  or  estates  for  years;  and  provided  further,  that  the  tax  on 
real  estate  shall  remain  a  lien  on  the  real  estate  on  which  the  same  is 
chargeable  until  paid.  And  the  owner  of  any  personal  estate  shall  make  a 
full  return  of  the  same  to  the  register  of  wills  of  the  proper  county,  within 
one  year  from  the  death  of  the  decedent,  and  within  that  time  enter  into 
security  for  the  payment  of  the  tax,  to  the  satisfaction  of  such  register ;  and 
in  case  of  failure  so  to  do,  the  tax  shall  be  immediately  payable  and  collecti- 
ble. (P.  L.  79;  Pur.  Dig.,  vol.  1,  p.  605.) 

§  1086.     Interest  and  Discount. 

Sec.  6.  If  the  collateral  inheritance  tax  shall  be  paid  within  three  months 
after  the  death  of  the  decedent,  a  discount  of  five  per  centum  shall  be 
made  and  allowed;  and  if  the  said  tax  is  not  paid  at  the  end  of  one  year 
from  the  death  of  the  decedent,  interest  shall  then  be  charged  at  the  rate 
of  twelve  per  centum  per  annum  on  such  tax;  but  where  from  claims  made 
upon  the  estate,  litigation  or  other  unavoidable  cause  of  delay,  the  estate 
of  any  decedent  or  part  thereof  cannot  be  settled  up  at  the  end  of  the  year 
from  his  or  her  decease,  six  per  centum  per  annum  shall  be  charged  upon 
the  collateral  inheritance  tax,  arising  from  the  unsettled  part  thereof,  from 
the  end  of  such  year  until  there  be  default;  provided  further,  that  where 
real  or  personal  estate  withheld  by  reason  of  litigation  or  other  cause  of 
delay  in  manner  aforesaid  from  the  parties  entitled  thereto,  subject  to  said 
tax,  has  not  been,  or  shall  not  be  productive  to  the  extent  of  six  per  centum 
per  annum,  they  shall  not  be  compelled  to  pay  a  greater  amount  as  interest 
to  the  commonwealth  than  they  may  have  realized,  or  shall  realize  from 
such  estate  during  the  time  the  same  has  been  or  shall  be  withheld  as  afore- 
said. (P.  L.  79;  Pur.  Dig.,  vol.  1,  p.  606.) 

§  1087.    Collection  of  Tax  by  Executor. 

Sec.  7.  The  executor,  or  administrator,  or  other  trustee,  paying  any 
legacy  or  share  in  the  distribution  of  any  estate,  subject  to  the  collateral 
inheritance  tax,  shall  deduct  therefrom  at  the  rate  of  five  dollars  in  every 
hundred  dollars,  upon  the  whole  legacy  or  sum  paid;  or  if  not  money,  he 
shall  demand  payment  of  a  sum  to  be  computed  at  the  same  rate,  upon  the 
appraised  value  thereof,  for  the  use  of  the  commonwealth;  and  no  executor, 
or  administrator  shall  be  compelled  to  pay  or  deliver  any  specific  legacy  or 
article  to  be  distributed,  subject  to  tax,  except  on  the  payment  into  his 
hands  of  a  sum  computed  on  its  value  as  aforesaid;  and  in  case  of  neglect 
or  refusal  on  the  part  of  said  legatee  to  pay  the  same,  such  specific  legacy 
or  article,  or  so  much  thereof  as  shall  be  necessary,  shall  be  sold  by  such 
executor  or  administrator  at  public  sale,  after  notice  to  such  legatee,  and 
the  balance  that  may  be  left  in  the  hands  of  the  executor  or  administrator 
shall  be  distributed,  as  is  or  may  be  directed  by  law;  and  every  sum  of 
money  retained  by  any  executor  or  administrator,  or  paid  into  his  hands  on 
account  of  any  legacy  or  distributive  share,  for  the  use  of  the  commonwealth^ 
shall  be  paid  by  him  without  delay.  (P.  L.  79;  Pur.  Dig.,  vol.  1,  p.  606.) 

§  1088.    Legacies  for  Limited  Period  or  upon  Contingency. 

Sec.  8.  If  the  legacy  subject  to  the  collateral  inheritance  tax  be  given 
to  any  person  for  life,  or  for  a  term  of  years,  or  for  any  other  limited 


678  INHERITANCE   TAXATION. 

period,  upon  a  condition  or  contingency,  if  the  same  be  money,  the  tar  thereon 
shall  be  retained  upon  the  whole  amount;  but  if  not  money,  application  shall 
be  made  to  the  orphans  court  having  jurisdiction  of  the  accounts  of  the 
executors  or  administrators  to  make  apportionment,  if  the  case  requires  it, 
of  the  sum  to  be  paid  by  such  legatees,  and  for  such  further  order  relative 
thereto  as  equity  shall  require.  (P.  L.  79;  Pur.  Dig.,  vol.  1,  p.  606.) 

§  1089.    Legacy  Charged  upon  Real  Estate. 

See.  9.  Whenever  such  legacy  shall  be  charged  upon  or  payable  out  of 
real  estate,  the  heir  or  devisee,  before  paying  the  same,  shall  deduct  there- 
from at  the  rate  aforesaid,  and  pay  the  amount  so  deducted  to  the  executor; 
and  the  same  shall  remain  a  charge  upon  such  real  estate  until  paid,  and 
the  payment  thereof  shall  be  enforced  by  the  decree  of  the  orphans  court, 
in  the  same  manner  as  the  payment  of  such  legacy  may  be  enforced.  (P. 
L.  79;  Pur.  Dig.,  vol.  1,  p.  607.) 

§  1090.     Notice  to  County  Register  of  Transfer. 

Sec.  10.  Whenever  any  real  estate  of  which  any  decedent  may  die  seised 
shall  be  subject  to  the  collateral  inheritance  tax,  it  shall  be  the  duty  of 
executors  and  administrators  to  give  information  thereof  to  the  register  of 
the  county,  where  administration  has  been  granted,  within  six  months  after 
they  undertake  the  execution  of  their  respective  duties,  or  if  the  fact  be 
not  known  to  them  within  that  period,  within  one  month  after  the  same 
shall  have  come  to  their  knowledge;  and  it  shall  be  the  duty  of  the  owners 
of  8-uch  estates,  immediately  upon  the  vesting  of  the  estates,  to  give  in- 
formation thereof  to  the  register  having  jurisdiction  of  the  granting  of 
administration.  (P.  L.  79;  Pur.  Dig.,  vol.  1,  p.  607.) 

§  1091.    Receipts  for  Payment. 

Sec.  11.  It  .shall  be  the  duty  of  any  executor  or  administrator,  on  the 
payment  of  collateral  inheritance  tax,  to  take  duplicate  receipts  from  the 
register,  one  of  which  shall  be  forwarded  forthwith  to  the  auditor  general, 
whose  duty  it  shall  be  to  charge  the  register  receiving  the  money  with  the 
amount,  and  seal  with  the  seal  of  his  office,  and  countersign  the  receipt  and 
transmit  it  to  the  executor  or  administrator,  whereupon  it  shall  be  a  proper 
voucher  in  the  settlement  of  the  estate;  but  in  no  event  shall  an  executor 
or  administrator  be  entitled  to  a  credit  in  his  account  by  the  register, 
unless  the  receipt  is  so  sealed  and  countersigned  by  the  auditor  general. 
(P.  L.  79;  Pur.  Dig.,  vol.  1,  p.  607.) 

§  1092.     Transfer  of  Stocks  or  Loans  by  Foreign  Executor. 

Sec.  12.  Whenever  any  foreign  executor,  or  administrator  or  trustee  shall 
assign  or  transfer  any  stocks  or  loans  in  this  commonwealth,  standing  in 
the  name  of  the  decedent,  or  in  trust  for  a  decedent,  which  shall  be  liable 
for  the  collateral  inheritance  tax,  such  tax  shall  be  paid,  on  the  transfer 
thereof,  to  the  register  of  the  county  where  such  transfer  is  made;  other- 
wise the  corporation  permitting  such  transfer  shall  become  liable  to  pay 
sueh  tax.  (P.  L.  79;  Pur.  Dig.,  vol.  1,  p.  607.) 


PENNSYLVANIA  STATUTE.  679 

§  1093.     Refund  of  Tax. 

Sec.  13.  Whenever  debts  shall  be  proven  against  the  estate  of  a  decedent, 
after  distribution  of  legacies  from  which  the  collateral  inheritance  tax  has 
been  deducted,  in  compliance  with  this  act,  and  the  legatee  is  required  to 
refund  any  portion  of  the  legacy,  a  proportion  of  the  said  tax  shall  be 
repaid  to  him  by  the  executor  or  administrator,  if  the  said  tax  has  not  been 
paid  into  the  state  or  county  treasury,  or  by  the  county  treasurer,  if  it  has 
been  so  paid.  (P.  L.  79;  Pur.  Dig.,  vol.  1,  p.  607.) 

§  1094.    Appraisers  and  Appraisement. 

Sec.  14.  It  shall  be  the  duty  of  the  register  of  wills  of  the  county  in 
which  letters  testamentary  or  of  administration  are  granted  to  appoint  an 
appraiser,  as  often  as  and  whenever  occasion  may  require,  to  fix  the  valua- 
tion of  estates,  which  are  or  shall  be  subject  to  collateral  inheritance  tax; 
and  it  shall  be  the  duty  of  the  appraiser  to  make  a  fair  and  conscionable 
appraisement  of  such  estates;  and  it  shall  further  be  the  duty  of  such 
appraiser  to  assess  and  fix  the  cash  value  of  all  annuities  and  life  estates 
growing  out  of  said  estates,  upon  which  annuities  and  life  estates  the 
collateral  inheritance  tax  shall  be  immediately  payable  out  of  the  estate 
at  the  rate  of  such  valuation;  provided,  that  any  person  or  persons,  not 
satisfied  with  said  appraisement,  shall  have  the  right  to  appeal  within 
thirty  days,  to  the  orphans  court  of  the  proper  county  or  city,  on  paying 
or  giving  security  to  pay  all  costs,  together  with  whatever  tax  shall  be 
fixed  by  said  court;  and,  upon  such  appeal,  said  courts  shall  have  jurisdic- 
tion to  determine  all  questions  of  valuation  and  of  the  liability  of  the  ap- 
praised estate  for  such  tax,  subject  to  the  right  of  appeal  to  the  supreme 
court  as  in.  other  cases.  (P.  L.  79;  Pur.  Dig.,  vol.  1,  p.  607.) 

§  1095.     Compensation  of  Appraisers. 

Sec.  15.  From  and  after  the  passage  of  this  act,  the  compensation  of 
appraisers  appointed  by  the  registers  of  wills  of  the  several  counties  of  the 
commonwealth  to  fix  the  value  of  estates  which  are  or  may  hereafter  be 
subject  to  collateral  inheritance  tax  shall  be  as  follows,  namely:  For  each 
and  every  day  on  which  an  appraiser  shall  actually  be  engaged  in  making 
appraisements  of  property  subject  to  said  tax,  he  shall  receive  the  sum  of 
two  dollars;  provided,  that  if,  in  the  discharge  of  his  duties,  it  shall  be  neces- 
sary for  him,  the  said  appraiser,  to  travel  from  his  place  of  residence  to  ap- 
praise property  subject  to  said  tax,  he  shall  be  allowed  such  actual  necessary 
traveling  expenses  as  he  may  incur,  which  expenses  shall  be  itemized  in  a 
sworn  statement  to  be  returned  to  the  register  and  subject  to  the  final  ap- 
proval of  the  auditor  general.  (P.  L.  325;  Pur.  Dig.,  vol.  1,  p.  608.) 

§  1096.    Appointment  of  Expert  as  Appraiser. 

Sec.  16.  It  is  hereby  further  provided  and  enacted  that  when,  by  virtue  of 
the  complicated  nature  of  an  estate  subject  to  the  payment  of  collateral  in- 
heritance tax,  the  interest  of  the  commonwealth  shall  require  the  appoint- 
ment, as  appraiser  of  said  estate,  of  a  person  possessed  of  expert  or  technical 
knowledge  to  ascertain  the  value  thereof,  reasonable  additional  compensation 


680  INHERITANCE   TAXATION. 

shall  be  allowed  said  appraiser  for  the  exercise  of  such  expert  or  technical 
knowledge,  and  in  cases  where,  after  the  appointment  of  an  appraiser  to  ap- 
praise the  value  of  an  estate  subject  to  the  payment  of  collateral  inheritance 
tax,  it  shall  appear  that  the  proper  appraisement  of  said  estate  will  require  the 
services  of  a  person  possessed  of  expert  or  technical  knowledge  whereof  the 
appraiser  appointed  to  appraise  said  estate  is  not  possessed,  he,  the  said  ap- 
praiser, may  employ  the  services  of  a  person  possessed  of  expert  or  technical 
knowledge  to  assist  him  in  the  appraisement  of  said  estate,  and  for  such  services 
the  person  so  employed  shall  receive  reasonable  compensation ;  provided,  that  in 
all  such  cases  the  register  of  wills  appointing  the  appraiser  shall  certify  to  the 
auditor  general,  that  there  is  actual  necessity  for  the  appointment  of  an  ap- 
praiser possessed  of  expert  or  technical  knowledge,  or  that  the  appraiser  already 
appointed  to  appraise  the  estate  in  qupstion  should  be  assisted  by  a  person  pos- 
sessed of  such  knowledge,  and  no  person  shall  be  appointed  as  such  expert 
appraiser,  or  as  expert  assistant  to  an  appraiser,  without  the  approval  of  the 
auditor  general  of  said  appointment  first  had  and  obtained,  nor  shall  any 
payment  be  made  to  any  appraiser,  or  to  any  person  employed  by  him,  under 
this  section,  until  an  itemized  statement  of  the  services  performed  and  compen- 
sation recommended  shall  have  been  rendered,  under  oath  or  affirmation,  to  the 
auditor  general  for  his  approval  and  shall  have  received  the  same;  and  pro- 
vided further,  that  no  clerk  or  other  person  employed  in  the  office  of  a  register 
of  wills  shall  be  appointed  an  expert  appraiser  of  an  estate  subject  to  the  pay- 
ment of  collateral  inheritance  tax,  nor  as  an  expert  to  assist  the  appraiser  of 
such  estate.  (P.  L,.  325;  Pur.  Dig.,  vol.  1,  p.  608,) 

§  1097.    Appraiser  Taking  More  Than  Regular  Fee — Penalty. 

Sec.  17.  It  shall  be  a  misdemeanor  in  any  appraiser,  appointed  by  the  regis- 
ter to  make  an  appraisement  in  behalf  of  the  commonwealth,  to-  take  any  fee  or 
reward  from  any  executor  or  administrator,  legatee,  next  of  kin  or  heir  of  any 
decedent  and  for  any  such  offense  the  register  shall  dismiss  him  from  such  ser- 
vice, and,  upon  conviction  in  the  quarter  sessions,  he  shall  be  fined  not  exceed- 
ing five  hundred  dollars,  and  imprisoned  not  exceeding  one  year,  or  both,  or 
either,  at  the  discretion  of  the  court.  (P.  L.  79;  Pur.  Dig.,  vol.  1,  p.  608.) 

§  1098.    Records  to  be  Kept  by  Register  of  Wills. 

Sec.  18.  It  shall  be  the  duty  of  the  register  of  wills  to  enter  in  a  book,  to 
be  provided  at  the  expense  of  the  commonwealth,  to  be  kept  for  that  purpose 
and  which  shall  be  a  public  record,  the  returns  made  by  all  appraisers  under 
this  act,  opening  an  account  in  favor  of  the  commonwealth  against  the  dece- 
dent's estate,  and  the  register  may  give  certificates  of  payment  of  such  tax  from 
such  record.  (P.  L.  79;  Pur.  Dig.,  vol.  1,  p.  608.) 

§  1099.    Report  by  Register  to  Auditor  General. 

Sec.  19.  It  shall  be  the  duty  of  the  register  to  transmit  to  the  auditor  gen- 
eral, on  the  first  day  of  each  month,  a  statement  of  all  returns  made  by  ap- 
praisers during  the  preceding  month,  upon  which  the  taxes  remain  unpaid, 
which  statement  shall  be  entered  by  the  auditor  general,  in  a  book  to  be  kept 
by  him  for  that  purpose.  (P.  L.  79;  Pur.  Dig.,  vol.  1,  p.  608.) 


PENNSYLVANIA  STATUTE.  681 

§  1100.    Proceedings  to  Enforce  Tax. 

Sec.  20.  Whenever  any  such  tax  shall  have  remained  due  and  unpaid  for  one 
year,  it  shall  be  lawful  for  the  register  to  apply  to  the  orphans  court,  by  bill 
or  petition,  to  enforce  the  payment  of  the  same;  whereupon  said  court  having 
caused  due  notice  to  be  given  to  the  owner  of  the  real  estate  charged  with  the 
tax  and  to  such  other  person  as  may  be  interested,  shall  proceed,  according  to 
equity,  to  make  such  decrees  or  orders  for  the  payment  of  the  said  tax  out  of 
such  real  estates,  as  shall  be  just  and  proper.  (P.  L.  79;  Pur.  Dig.,  vol.  1,  p. 
609.) 

§  1101.     Citation  to  Parties  in  Case  of  Unpaid  Tax. 

Sec.  21.  If  the  register  shall  discover  that  any  collateral  inheritance  tax 
has  not  been  paid  over  according  to  law,  the  orphans  court  shall  be  authorized 
to  cite  the  executors  or  administrators  of  the  decedent,  whose  estate  is  subject 
to  the  tax,  to  file  an  account  or  to  issue  a  citation  to  the  executors,  adminis- 
trators or  heirs,  citing  them  to  appear  on  a  certain  day  and  show  cause  why  the 
said  tax  should  not  be  paid;  and  when  personal  service  cannot  be  had,  notice 
shall  be  given  for  four  weeks,  once  a  week,  in  at  least  one  newspaper  published 
in  said  county;  and  if  the  said  tax  shall  be  found  to  be  due  and  unpaid,  the 
said  delinquent  shall  pay  said  tax  and  costs.  (P.  L.  79;  Pur.  Dig.,  voL  1, 
p.  609.) 

§  1102.    Employment  of  Attorney  to  Sue  for  Tax. 

Sec.  22.  It  shall  be  the  duty  of  the  register,  or  of  the  auditor  general, 
to  employ  an  attorney  of  the  proper  county  to  sue  for  the  recovery  and  amount 
of  such  tax;  and  the  auditor  general  is  authorized  and  empowered,  in  settle- 
ment of  accounts  of  any  register,  to  allow  him  costs  of  advertising  and  other 
reasonable  fees  and  expenses  incurred  in  the  collection  of  taxes.  (P.  L.  79; 
Pur.  Dig.,  vol.  1,  p.  609.) 

§  1103.     Compensation  of  Register  for  Collecting  Tax. 

Sec.  23.  The  register  of  will  of  the  several  counties  of  this  commonwealth, 
upon  their  filing  with  the  auditor  general  the  bond  hereinafter  required,  shall 
be  the  agents  of  the  commonwealth  for  the  collection  of  the  collateral  inher- 
itance tax;  and  for  services  rendered  in  collecting  and  paying  over  the  same, 
the  said  agents  shall  be  allowed  to  retain  for  their  own  use  five  per  centum 
upon  the  collateral  inheritance  tax  collected,  if  the  said  tax  shall  amount 
to  a  sum  less  than  two  hundred  thousand  dollars  in  any  year;  or  four  per 
centum  upon  the  said  tax,  if  the  same  shall  amount  to  two  hundred  thou- 
sand dollars  and  less  than  three  hundred  thousand  dollars  in  any  year;  or 
three  per  centum  upon  the  said  tax,  if  the  tax  collected  shall  amount  to  three 
hundred  thousand  dollars  or  more  in  any  year;  provided  further,  that  this 
section  shall  not  apply  to  the  fees  of  the  registers  elected  prior  to  the  passage 
of  this  act.  (P.  L.  59;  Pur.  Dig.,  vol.  1,  p.  609.) 

§  1104.     Bond  of  Register. 

Sec.  24.  The  said  register  shall  give  bond  to  tne  commonwealth  in  such 
penal  sum  as  the  orphans  court  of  the  county  may  direct,  with  two  or  more 


682  INHERITANCE  TAXATION. 

sufficient  sureties,  for  the  faithful  performance  of  the  duties  hereby  imposed, 
and  for  the  regular  accounting  and  paying  over  of  the  amounts  to  be  collected 
and  received,  and  said  bond,  on  its  execution  and  approval  by  the  said  orphans 
court,  to  be  forwarded  to  the  auditor  general.  (P.  L.  84;  Pur.  Dig.,  vol.  1, 
p.  609.) 

§  1105.    Collection  by  County  Treasurer. 

Sec.  25.  Until  bond  and  security  be  given,  as  required  by  the  preceding 
section,  the  said  collateral  inheritance  tax  shall  be  received  and  collected  by 
the  county  treasurer  as  heretofore;  and  in  such  cases,  all  the  provisions  of 
this  act  relating  to  collection  and  payment  by  registers  shall  apply  to  the 
county  treasurer.  (P.  L.  84;  Pur.  Dig.,  vol.  1,  p.  609.) 

§  1106.    Returns  and  Payment  by  Register  to  State  Treasurer. 

Sec.  26.  It  shall  be  the  duty  of  the  register  of  will  of  each  county  to  make 
returns  and  payment  to  the  state  treasurer  of  all  the  collateral  inheritance 
taxes  he  shall  have  received,  stating  for  what  estate  paid,  on  the  first  Mon- 
days of  April,  July,  October  and  January  in  each  year,  and  for  all  taxes  col- 
lected by  him,  and  not  paid  over  within  one  month  after  his  quarterly  return 
of  the  same,  he  shall  pay  interest  at  the  rate  of  twelve  per  centum  per  annum 
until  paid.  (P.  L.  84;  Pur.  Dig.,  vol.  1,  p.  609.) 

§  1107.    Lien  of  Tax 

Sec.  27.  The  lien  of  the  collateral  inheritance  tax  shall  continue  until  the 
said  tax  is  settled  and  satisfied;  provided,  that  the  said  lien  shall  be  limited 
to  the  property  chargeable  therewith;  and  provided  further,  that  all  collateral 
inheritance  taxes  shall  be  sued  for  within  five  years  after  they  are  due  and 
legally  demandable,  otherwise  they  shall  be  presumed  to  have  been  paid,  and 
cease  to  be  a  lien  as  against  any  purchasers  of  real  estate;  and  provided 
further,  that  all  taxes  due  and  legally  demandable  at  the  date  of  the  passage 
of  this  act,  the  collection  of  which  would  be  barred  by  the  provisions  hereof, 
shall  not  be  barred,  if  suit  shall  be  brought  therefor  within  one  year  from 
the  date  of  the  passage  of  this  act.  (P.  L.  84;  Pur.  Dig.,  vol.  1,  p.  609.) 

§  1108.    Refund  of  Tax  Erroneously  Paid. 

Sec.  28.  In  all  cases  where  any  amount  of  collateral  inheritance  tax  has 
heretofore  been  paid,  or  may  hereafter  be  paid,  erroneously,  to  the  register  of 
wills  of  the  proper  county,  for  the  use  of  the  commonwealth,  it  shall  be  law- 
ful for  the  state  treasxirer,  on  satisfactory  proof  rendered  to  him  by  said 
register  of  wills  of  such  erroneous  payment,  to  refund  and  pay  over  to  the 
executor,  administrator,  person  or  persons  who  may  have  heretofore  paid  or 
may  hereafter  pay  any  of  such  tax  in  error,  the  amount  of  such  tax  thus  erro- 
neously paid.  (P.  L.  59;  Pur.  Dig.,  vol.  1,  p.  610.) 

§  1109.    Application  for  Repayment  of  Tax. 

Sec.  29.  Provided,  that  all  such  applications  for  the  repayment  of  such 
aforesaid  tax,  erroneously  paid  in  the  treasury,  shall  be  made  within  two  years 
from  the  date  of  said  payment,  except  when  the  estate,  upon  which  such  tax 


PENNSYLVANIA  STATUTE.  683 

shall  have  been  so  erroneously  paid,  shall  have  consisted  in  whole  or  in  part 
of  a  partnership,  or  other  interest  of  uncertain  value,  or  shall  have  been  in- 
volved in  litigation,  by  reason  whereof  there  shall  have  been  an  over-valuation 
of  that  portion  of  the  estate  on  which  the  tax  has  been  assessed  and  paid, 
which  over-valuation  could  not  have  been  ascertained  within  said  period  of 
two  years;  then,  and  in  such  case,  the  application  for  repayment  may  be 
made  to  the  state  treasurer  within  one  year  from  the  termination  of  such  liti- 
gation, or  ascertainment  of  such  over-valuation,  or  if  that  period  has  already 
expired  at  the  time  of  the  passage  of  this  act,  then  within  six  months  after 
the  passage  of  this  act,  notwithstanding  any  limitation  contained  in  any  pre- 
vious act  of  assembly.  (P.  L.  59;  Pur.  Dig.,  vol.  1,  p.  610.) 

§  1110.    Eefund  of  Tax  When  Estate  was  not  Subject  Thereto. 

Sec.  30.  In  all  cases  where  a  collateral  inheritance  tax  has  heretofore  been 
paid,  or  may  hereafter  be  paid,  to  the  register  of  wills  of  the  proper  county, 
for  the  use  of  the  commonwealth,  and  it  shall  afterward  be  made  to  appear 
in  the  proper  courts  that  the  estate  is  not  subject  to  a  collateral  inheritance 
tax,  on  account  of  the  lineal  heirs  being  subsequently  discovered,  it  shall  be 
lawful  for  the  state  treasurer  to  refund  and  pay  over  to  the  executor,  admin- 
istrator, or  person  or  persons  who  may  have  heretofore  paid,  or  may  hereafter 
pay,  such  collateral  inheritance  tax  erroneously,  the  amount  of  such  tax  paid 
into  the  treasury.  (P.  L.  20;  Pur.  Dig.,  vol.  1,  p.  610.) 

§  1111.    Bequest  for  Burial  Lot. 

Sec.  31.  Hereafter  all  bequests  and  devises  in  trust,  for  the  purpose  of 
applying  the  entire  interest  or  income  thereof  to  the  care  and  preservation 
of  the  family  burial  lot  or  lots  of  the  donor,  in  good  order  and  repair  perpet- 
ually, shall  be  exempt  from  liability  for  collateral  inheritance  tax.  (P.  L.  12; 
Pur.  Dig.,  vol.  1,  p.  610.) 

§  1112.     Time  When  Statute  Takes  Effect. 

See.  32.  This  act  shall  take  effect  on  and  after  the  first  day  of  January, 
one  thousand  nine  hundred  and  four,  and  shall  not  apply  to  any  bequest  or 
devise,  as  aforesaid,  made  prior  to  that  time.  (P.  L.  12;  Pur.  Dig.,  vol.  1, 
p.  610.) 


684>  INHERITANCE  TAXATION. 


CHAPTER  LI. 

SOUTH  DAKOTA  STATUTE. 

(Laws  of  1905,  pp.  54-60.) 

§  1113.  Transfers  Subject  to  Tax — Bates  of  Taxation — Market  Value. 

§  1114.  Estates  for  Years  or  for  Life  and  Bemainders. 

§  1115.  Time  for  Payment  of  Tax. 

§  1116.  Collection  of  Tax  by  Executor. 

§  1117.  Sale  of  Property  to  Pay  Tax. 

§  1118.  Payment  to  State  Treasurer — Beceipts  and  Vouchers. 

§  1119.  Notice  to  County  Treasurer  of  Taxable  Transfers. 

§  1120.  Befund  in  Case  of  Debts  Proved  After  Distribution. 

§  1121.  Transfer  of  Stock  or  Loans  by  Foreign  Executor. 

§  1122.  Befund  in  Case  of  Erroneous  Payment. 

§  1123.  Appraisers  and  Appraisement. 

§  1124.  Appraiser  Taking  More  Than  Begular  Fee — Penalty. 

§  1125.  Jurisdiction  of  County  Court. 

§  1126.  Citation  to  Delinquent  Taxpayer. 

§  1127.  Notice  to  State's  Attorney  of  Unpaid  Tax. 

§  1128.  Statement  of  County  Treasurer  of  Unpaid  Taxes. 

§  1129.  Books  and  Becords  to  be  Kept  by  Clerk  of  Court. 

§  1130.  Beceipts  for  Taxes  Paid. 

§  1131.  Lien  of  Tax. 

§  1132.  Expenses  Incurred  in  Enforcing  Tar. 

§  1133.  Payment  to  State  Treasurer. 

§  1113.    Transfers  Subject  to  Tax — Rates  of  Taxation — Market  Value. 

Sec.  1.  That  all  property,  real,  persona]  and  mixed,  which  shall  pass  by 
will  or  by  the  intestate  laws  of  this  state,  or  according  to  the  provision  of  any 
statute  in  this  state,  from  any  person  who  may  die  seised  or  possessed  of  the 
same  while  a  resident  of  this  state,  or  if  decedent  was  not  a  resident  of  this 
state  at  the  time  of  his  death,  which  property,  or  any  part  thereof,  shall  be 
within  this  state,  or  any  interest  therein  or  income  therefrom  which  shall  be 
transferred  by  deed,  grant,  sale  or  gift  made  in  contemplation  of  the  death 
of  the  grantor,  or  bargainer  or  giver,  or  intended  to  take  effect  in  possession 
or  enjoyment  after  such  death,  to  any  person  or  persons  or  to  any  body  politic 
or  corporate  in  trust  or  otherwise,  or  by  reason  whereof  any  person  or  any  body 
politic  or  corporate  shall  become  beneficially  entitled,  in  possession  or  expec- 
tancy, to  any  property  or  income  thereof,  shall  be  and  is  subject  to  a  tax  at 
the  rate  hereinafter  specified,  to  be  paid  to  the  treasurer  of  the  proper  county 
for  the  use  of  the  state,  and  all  heirs,  legatees  and  devisees,  administrators, 
executors  and  trustees  shall  be  liable  fox  any  and)  all  such  taxes  until  the 
same  shall  have  been  paid  as  hereinafter  directed. 

When  the  beneficial  interests  to  any  property  or  income  therefrom  shall 
pass  to  or  for  the  use  of  any  father,  mother,  husband,  wife,  child,  brother, 


SOUTH  DAKOTA  STATUTE.  685 

sister,  wife  or  widow  of  the  son,  or  husband  of  the  daughter,  or  any  child 
or  children  adopted  as  such  in  conformity  with  the  laws  of  the  state  of  South 
Dakota,  or  to  any  person  to  whom  the  deceased,  for  not  less  than  ten  years 
prior  to  death,  stood  in  the  acknowledged  relation  of  a  parent,  or  to  any 
lineal  descendant  born  in  lawful  wedlock;  in  every  such  case  the  rate  of  tax 
shall  be  one  dollar  on  every  one  hundred  dollars  of  the  clear  market  value 
of  such  property  received  by  each  person,  and'  at  and  after  the  same  rate 
for  every  less  amount.  Estates  of  the  clear  market  value  of  twenty  thousand 
dollars  or  less  transferred  to  the  widow  of  the  deceased,  and  five  thousand 
dollars  to  each  of  the  other  persons  above  mentioned,  shall  be  exempt. 

When  the  beneficial  interest  to  any  property  or  income  therefrom  shall  pass 
to  or  for  the  use  of  any  uncle,  aunt,  niece,  nephew  or  any  lineal  descendant 
of  the  same,  in  every  such  case,  the  rate  of  such  tax  shall  be  two  dollars  on 
every  hundred  dollars  of  the  clear  market  value  of  such  property  received  by 
each  person.  Estates  of  the  clear  market  value  of  five  hundred  dollars  trans- 
ferred to  each  of  the  persons  last  above  mentioned  shall  be  exempt. 

In  all  other  cases  the  rate  shall  be  as  follows:  On  each  and  every  one  hun- 
dred dollars  of  the  clear  market  values  of  all  property  and  at  the  same  rate 
for  any  less  amount  on  all  estates  of  ten  thousand  dollars  and  less,  four  dollars; 
on  all  estates  of  over  ten  thousand  dollars,  and  not  exceeding  twenty  thou- 
sand dollars,  six  dollars;  on  all  estates  over  twenty  thousand  dollars  and  not 
exceeding  fifty  thousand  dollars,  eight  dollars;  and  on  all  estates  over  fifty 
thousand  dollars,  ten  dollars.  Estates  of  the  clear  market  value  of  one  hun- 
dred dollars,  transferred  to  each  of  the  parties  mentioned  in  the  last  named 
class,  shall  be  exempt. 

The  taxes  so  imposed  by  this  act  shall  be  upon  the  clear  market  value  of 
such  property  at  the  rates  above  prescribed  for  each  class  and  only  upon  the 
excess  above  the  exemption  herein  provided.  (Laws  1905,  p.  54.) 

§  1114.     Estates  for  Years  or  for  Life  and  Remainders. 

Sec.  2.  When  any  person  shall  bequeath  or  devise  any  property  or  interest 
therein,  or  income  therefrom  to  mother,  father,  husband,  wife,  brother,  sister, 
the  widow  of  a  son  or  a  lineal  descendant  during  life  or  for  a  term  of  years, 
or  the  remainder  to  the  collateral  heir  of  the  decedent  or  to  a  stranger  in  blood 
or  body  corporate  at  their  decease,  or  on  the  expiration  of  such  term  the  said 
life  estate  or  estate  for  a  term  of  years  shall  not  be  subject  to  any  tax,  and 
the  property  so  passing  shall  be  appraised  immediately  after  the  death  at 
what  was  the  fair  market  value  thereof  at  the  time  of  the  death  of  the  dece- 
dent in  the  manner  hereinafter  provided,  and  after  deducting  therefrom  the 
value  of  said  life  estate  or  term  of  years  the  tax  prescribed  by  this  act  on 
the  remainder  shall  be  immediately  due  and  payable  to  the  treasurer  of  the 
proper  county,  and  together  with  the  interest  thereon  shall  be  and  remain  a  lien 
on  said  property  until  paid.  Provided,  that  the  person  or  persons  or  body 
politic  or  corporate  beneficially  interested  in  the  property  chargeable  with  said 
tax  may  elect  not  to  pay  the  same  until  they  shall  come  into  the  actual  pos- 
session or  enjoyment  of  such  property,  and  in  that  case  said  person  or 
persons  or  body  politic  or  corporate  shall  execute  a  bond  to  the  state  of 
South  Dakota  in  a  penalty  three  times  greater  than  the  amount  of  said 


686  INHERITANCE  TAXATION. 

tax,  with  such  surety  aa  the  judge  of  the  county  court  of  the  proper  county 
may  approve,  conditioned  for  the  payment  of  said  'tax  and  interest  thereon 
at  such  time  or  period  as  they  or  their  representatives  may  come  into  the 
actual  possession  or  enjoyment  of  said  property;  said  bond  shall  be  filed 
in  the  office  of  the  clerk  of  the  county  court  of  the  proper  county.  Pro- 
vided, further,  that  such  person  shall  make  a  full,  verified  return  of  such 
property  and  file  the  same  in  the  office  of  the  clerk  of  the  county  court 
of  the  proper  county  within  one  year  from  the  death  of  the  decedent  and 
within  that  period  enter  into  such  security,  and  renew  the  same  every 
five  years.  (Laws  1905,  p.  55.) 

§  1115.    Time  for  Payment  of  Tax. 

Sec.  3.  All  taxes  imposed  by  this  act,  unless  otherwise  herein  provided 
for,  shall  be  due  and  payable  at  the  death  of  the  decedent,  and  interest  at 
the  rate  of  six  per  cent  per  annum  shall  be  charged  and  collected  thereon 
for  such  times  as  said  tax  is  not  paid.  Provided,  that  if  said  tax  is  paid 
within  twelve  months  from  the  accruing  thereof,  interest  shall  not  be  charged 
or  collected  thereon,  but  a  discount  of  five  per  cent  shall  be  allowed  and 
deducted  from  said  tax,  and  in  all  cases  where  the  executors,  adminis- 
trators or  trustees  do  not  pay  such  tax  within  one  year  from  the  death  of 
the  decedent  they  shall  be  required  to  give  a  bond  in  the  form  and  to  the 
effect  prescribed  in  section  two  of  this  act  for  the  payment  of  said  tax, 
together  with  interest.  (Laws  1905,  p.  56.) 

§  1116.    Collection  of  Tax  by  Executor. 

Sec.  4.  Any  administrator,  executor  or  trustee  having  in  charge  or  trust 
any  legacies  or  property  for  distribution  subject  to  the  said  tax  shall 
deduct  the  tax  therefrom,  or  if  the  legacy  or  property  be  not  money  he  shall 
collect  a  tax  thereon  upon  the  appraised  value  thereof  from  the  legatee  or 
person  entitled  to  such  property,  and  he  shall  not  deliver  or  be  compelled 
to  deliver  any  specific  legacy  or  property  subject  to  tax  to  any  person 
until  he  shall  have  collected  the  tax  thereon,  and  whenever  any  such  legacy 
shall  be  charged  upon  or  payable  out  of  real  estate  the  heir  or  devisee  before 
paying  the  same  shall  deduct  said  tax  therefrom  and  pay  the  same  to  the 
executor,  administrator  or  trustee,  and  the  same  shall  remain  a  charge 
on  said  real  estate  until  paid,  and  the  payment  thereof  shall  be  enforced 
by  the  executor,  administrator  or  trustee  in  the  same  manner  that  the  pay- 
ment of  such  legacy  might  be  enforced;  if,  however,  such  legacy  be  given 
in  money  to  any  person  for  a  limited  period  he  shall  retain  the  tax  upon  the 
whole  amount,  but  if  it  be  not  in  money  he  shall  make  application  to  the 
court  having  jurisdiction  of  his  accounts  to  make  an  apportionment  if  the 
ease  requires  it,  of  the  sum  to  be  paid  into  his  hands  by  said  legatees  and 
for  such  further  order  relative  thereto  as  the  case  may  require.  (Laws 
1905,  p.  56.) 

§  1117.    Sale  of  Property  to  Pay  Tax. 

Sec.  5.  All  executors,  administrators  and  trustees  shall  have  full  power 
to  sell  so  much  of  the  property  of  the  decedent  as  will  enable  them  to  pay 


SOUTH  DAKOTA  STATUTE.  687 

said  tax  in  the  same  manner  as  they  may  be  enabled  by  law  to  do  for  the 
payment  of  debts  of  their  testators  and  intestates,  and  the  amount  of  said 
tax  shall  be  paid  as  hereinafter  directed.  (Laws  1905,  p.  56.) 

§  1118.    Payment  to  State  Treasurer — Receipts  and  Vouchers. 

Sec.  6.  Every  sum  of  money  retained  by  any  executor,  administrator  or 
trustee  or  paid  into  his  hands  for  any  tax  on  any  property  phall  be  paid  by 
him  within  thirty  days  thereafter  to  the  treasurer  of  the  proper  county, 
and  said  treasurer  shall  give,  and  every  executor,  administrator  or  trustee 
shall  take,  duplicate  receipts  from  him  of  such  payment,  one  of  which  re- 
ceipts he  shall  immediately  send  to  the  treasurer  of  state,  whose  duty 
it  shall  be  to  charge  the  treasurer  so  receiving  said  tax  with  the  amount 
thereof,  and  said  treasurer  of  state  shall  seal  said  receipt  with  the  seal 
of  his  office  and  countersign  the  same  and  return  it  to  said  executor,  admin- 
istrator or  trustee,  whereupon  it  shall  be  a  proper  voucher  in  the  settle- 
ment of  his  accounts,  but  said  executor,  administrator  or  trustee  shall  not 
b«  entitled  to  credit  in  his  accounts  or  be  discharged  from  liability  for 
such  tax  unless  he  shall  produce  a  receipt  so  sealed  and  countersigned  by 
the  treasurer  of  state,  or  a  copy  thereof,  duly  certified  by  such  treasurer. 
(Laws  1905,  p.  56.) 

$  1119.    Notice  to  County  Treasurer  of  Taxable  Transfers. 

Sec.  7.  Whenever  any  of  the  real  estate  of  which  any  decedent  may  die 
seised  shall  pass  to  any  body  politic,  corporate  or  to  any  person  or  persons, 
or  in  trust  for  them,  or  some  of  them,  it  shall  be  the  duty  of  the  executor, 
administrator  or  trustee  of  such  decedent  to  give  information  thereof  in 
writing  to  th«  treasurer  of  the  county  where  said  real  estate  is  situate 
within  six  months  after  undertaking  the  execution  of  their  respective  duties, 
or  if  the  fact  be  not  known  to  them  within  that  period,  then  within  one 
month  after  the  same  shall  come  to  their  knowledge.  (Laws  1905,  p.  57.) 

§  1120.    Refund  in  Case  of  Debts  Proved  After  Distribution, 

Sec.  8.  Whenever  debts  shall  be  proven  against  the  estate  of  the  de- 
cedent after  the  payment  of  legacies  or  distribution  of  property,  from  which 
said  tax  has  been  deducted:,  or  upon  which  it  has  been  paid  and  a  refund  is 
made  by  the  legatee,  devisee,  heir  or  next  of  kin,  a  proportion  of  the  tax  so 
paid  shall  be  repaid  to  him  by  the  executor,  administrator  or  trustee,  if  said 
tax  has  not  been  paid  to  the  county  treasurer  or  to  the  treasurer  of  the  state, 
and  by  them  if  it  has  been  so  paid.  (Laws  1906,  p.  57.) 

§  1121.    Transfer  of  Stock  or  Loans  by  Foreign  Executor. 

Sec.  9.  Whenever  any  foreign  executor  or  administrator  shall  assign  or 
transfer  any  stock  or  loans  in  this  state  standing  in  the  name  of  a  decedent, 
or  any  trustees  for  a  decedent,  which  shall  be  liable  to  said  tax,  said  tax 
shall  be  paid  to  the  treasurer  of  the  proper  county  on  the  transfer  thereof, 
otherwise  the  party  making  or  permitting  such  transfer  shall  become  liable 
to  pay  such  tax.  (Laws  1905,  p.  57.) 


688  INHERITANCE   TAXATION. 

§  1122.    Refund  In  Case  of  Erroneous  Payment. 

Sec.  10.  When  any  amount  of  said  tax  shall  have  been  paid  erroneously 
to  the  treasurer  of  said  state,  it  shall  be  lawful  for  him,  on  satisfactory 
proof  rendered  to  him  by  the  county  treasurer  of  said  erroneous  payment,  to 
refund  and  pay  to  the  executor,  administrator  or  person  or  persons  who  have 
paid  such  tax  in  error  the  amount  of  such  tax  so  paid.  Provided,  that  all 
such  applications  for  the  repayment  of  such  tax  shall  be  made  within  two 
years  from  the  date  of  said  payment.  (Laws  1905,  p.  57.) 

§  1123.    Appraisers  and  Appraisement. 

Sec.  11.  In  order  to  fix  the  value  of  property  of  persons  whose  estates 
shall  be  subject  to  the  payment  of  such  tax,  the  county  judge,  on  applica- 
tion of  any  interested  party  or  officer,  or  upon  his  own  motion,  shall  appoint 
some  competent  person  as  appraiser,  as  often  as  and  whenever  occasion  may 
require,  whose  duty  shall  be  forthwith  to  give  such  notice  by  mail  to  all 
persons  known  to  have  or  claim  an  interest  in  said  property,  and  to  such 
persons  as  the  county  judge  may  by  order  direct,  of  the  time  and  place  at 
which  he  will  appraise  such  property,  and  at  such  time  and  place  to  appraise 
the  same  at  a  fair  market  value,  and  for  that  purpose  the  appraiser  is 
authorized,  by  leave  of  the  county  judge,  to  use  subpoena  for  and  to  compel 
the  attendance  of  witnesses  before  him  and  to  take  the  evidence  of  such 
witnesses  under  oath  concerning  such  property  and  the  value  thereof,  and 
he  shall  make  a  report  thereof  and  of  such  value  in  writing,  together  with 
depositions  of  the  witnesses  examined  and  such  other  facts  in  relation 
thereto  and  of  such  matters  as  said  judge  may  by  order  require  to  be  filed 
in  the  office  of  the  clerk  of  the  county  court,  and  from  this  report  the  said 
county  judge  shall  forthwith  assess  and  fix  the  then  cash  value  of  all  estates, 
annuities  and  life  estates  or  term  of  years  growing  out  of  said  estate,  and 
the  tax  to  which  the  same  is  liable,  and  shall  immediately  cause  notice  by 
mail  to  be  given  to  all  parties  known  to  be  interested  therein.  Any  person 
or  persons  dissatisfied  with  the  appraisement  or  assessment  may  appeal 
therefrom,  as  provided  for  appeals  from  the  county  court,  within  sixty 
days  after  the  making  and  filing  of  such  appraisement  or  assessment,  upon 
giving  approved  security  for  the  payment  of  all  costs,  together  with  what- 
ever taxes  sihall  be  ultimately  adjudged.  The  said  appraiser  shall  be  paid 
by  the  county  treasurer  out  of  any  funds  he  may  have  in  his  hands,  upon 
the  certificate  of  the  county  judge,  at  the  rate  of  three  dollars  for  every 
day  actually  and  necessarily  employed  in  making  said  appraisement,  with 
his  actual  and  necessary  traveling  expenses  as  allowed  and  fixed  by  the 
judge  of  the  county  court.  (Laws  1905,  p.  57.) 

§  1124.    Appraiser  Taking  More  Than  Begular  Fee — Penalty. 

Sec.  12.  Any  appraiser  appointed  by  virtue  of  this  act  who  shall  take 
any  fee  or  reward  from  any  executor,  administrator,  trustee,  legatee,  next 
of  kin  or  heir  of  any  ctecedent,  or  from  any  other  person  liable  to  pay  said 
tax  or  any  portion  thereof,  shall  be  guilty  of  a  misdemeanor  and  upon  con- 
viction thereof  in  any  court  of  competent  jurisdiction  shall  be  fined  not  less 
than  two  hundred  and  fifty  dollars  or  more  than  five  hundred  dollars  and 


SOUTH  DAKOTA  STATUTE.  689 

imprisoned  not  exceeding  ninety  days,  and  in  addition  thereto  he  shall  be 
dismissed  from  such  service.     (Laws  1905,  p.  58.) 

§  1125.     Jurisdiction  of  County  Court. 

Sec.  13.  The  county  court  in  the  county  in  which  the  real  property  is 
situate  of  a  decedent  who  was  not  a  resident  of  the  state,  or  of  the  county 
in  which  the  decedent  was  a  resident  at  the  time  of  his  death,  shall  have 
jurisdiction  to  hear  and  determine  all  questions  in  relation  to  the  tax  arising 
under  the  provisions  of  this  act.  (Laws  1905,  p.  58.) 

§  1126.    Citation  to  Delinquent  Taxpayer. 

Sec.  14.  If  it  shall  appear  that  any  tax  accruing  under  this  act  has  not 
been  paid  according  to  law,  a  citation  shall  be  issued,  citing  the  person 
interested  in  the  property  liable  to  the  tax  to  appear  before  the  court  on  a 
day  certain,  not  more  than  three  months  after  the  date  of  such  citation,  and 
show  cause  why  such  tax  should  not  be  paid.  The  process,  practice  and 
pleading  and  the  hearing  and  determination  thereof  and  the  judgment  in 
said  court  in  such  cases  shall  conform  to  the  practice  in  other  probate  cases, 
and  the  fees  and  costs  in  such  cases  shall  be  the  same  as  in  probate  cases 
in  the  county  courts  in  this  state.  (Laws  1905,  p.  58.) 

§  1127.     Notice  to  State's  Attorney  of  Unpaid  Tax. 

Sec.  15.  Whenever  the  treasurer  of  any  county  shall  have  reason  to 
believe  that  any  tax  is  due  and  unpaid  under  this  act,  after  the  refusal  of 
the  person  interested  in  the  party  liable  to  said  tax  to  pay  the  same,  he 
shall  notify  the  state's  attorney  of  the  proper  county,  in  writing,  of  failure 
to  pay  such  tax,  and  the  state's  attorney  so  notified,  if  he  have  probable 
cause  to  believe  a  tax  is  due  and  unpaid,  shall  prosecute  the  proceedings  in 
the  proper  court  as  provided  in  section  fourteen  of  this  act  for  the  enforce- 
ment and  collection  of  such  tax,  and  in  <«uch  case  said  court  shall  allow  as 
costs  in  said  case,  to  be  paid  as  said  tax  is  paid,  such  fees  to  said  attorney 
as  he  may  deem  reasonable.  (Laws  1905,  p.  59.) 

§  1128.     Statement  of  County  Treasurer  of  Unpaid  Taxes. 

Sec.  16.  The  judge  and  clerk  of  the  county  court  of  each  county  shall, 
every  three  months,  make  a  statement  in  writing  to  the  county  treasurer 
of  his  county  as  to  the  property  from  which  or  the  party  from  whom  he  has 
reason  to  believe  a  tax  under  this  act  is  due  and  unpaid.  (Laws  1905,  p.  59.) 

§  1129.    Books  and  Records  to  be  Kept  by  Clerk  of  Court. 

Sec.  17.  The  clerk  of  the  county  court  of  each  county  shall  procure  a 
book,  in  which  he  shall  enter  the  returns  made  by  appraisers,  the  cash 
values  of  annuities,  life  estates  and  terms  of  years  and  other  property  as 
fixed  by  the  county  court,  together  with  the  tax  assessed  thereon  and  the 
amount  of  any  receipts  for  payments  thereon  filed  with  him,  which  book 
shall  be  a  public  record.  (Laws  1905,  p.  59.) 
44 


690  INHERITANCE   TAXATION. 

§  1130.     Receipts  for  Taxes  Paid. 

Sec.  18.  Any  person  or  body  politic  or  corporate  shall,  upon  the  payment 
of  the  sum  of  fifty  cents,  be  entitled  to  a  receipt  from  the  county  treasurer, 
or  a  copy  of  the  receipt,  at  his  option,  that  may  have  been  given  by  said 
treasurer  for  the  payment  of  any  tax  under  this  act,  which  receipt  shall 
designate  on  what  real  property,  if  any,  of  which  deceased  may  have  died 
seised,  said  tax  has  been  paid,  and  by  whom  paid,  and  whether  or  not  it  is 
in  full  of  said  tax,  and  said  receipt  may  be  recorded  in  the  office  of  the 
clerk  of  the  county  court  of  the  county  in  which  the  property  may  be  situate 
in  the  book  provided  by  section  seventeen.  (Laws  1905,  p.  59.) 

§  1131.    Lien  of  Tax. 

Sec.  19.  The  lien  of  the  collateral  inheritance  tax  shall  continue  until 
the  said  tax  is  settled  and  satisfied.  Provided,  that  said  lien  shall  be  limited 
to  the  property  chargeable  therewith.  And,  provided  further,  that  all  in- 
heritance taxes  shall  be  sued  for  within  six  years  after  they  are  due  and 
legally  demandable,  otherwise  they  shall  be  presumed  to  be  paid  and  cease 
to  be  a  lien  as  against  purchasers  of  said  real  estate  only.  (Laws  1905,  p. 
59.) 

§  1132.    Expenses  Incurred  in  Enforcing  Tax. 

Sec.  20.  Whenever  the  county  judge  of  any  county  shall  certify  that 
there  was  probable  cause  for  issuing  a  summons,  and  taking  the  proceed- 
ings specified  in  sections  fourteen  and  fifteen  of  this  act,  the  state  treasurer 
shall  pay  or  allow  to  the  treasurer  of  any  county  all  expenses  incurred  for 
service  of  summons  and  his  other  lawful  disbursements  that  have  not  yet 
been  paid.  (Laws  1905,  p.  60.) 

§  1133.    Payment  to  State  /reasurer. 

Sec.  21.  The  treasurer  of  each  county  shall  collect  and  pay  the  state 
treasurer  all  taxes  that  may  be  due  and  payable  under  this  act,  who  shall 
give  him  a  receipt  therefor,  of  which  collection  and  payment  he  shall  make 
a  report  under  oath  to  the  county  auditor  on  the  first  Monday  in  March  and 
September  of  each  year,  stating  for  what  estate  paid,  and  in  such  form  and 
containing  such  particulars  as  the  county  auditor  may  prescribe,  and  for  all 
said  taxes  collected  by  him  and  not  paid  to  the  state  treasurer  by  the  first 
day  of  October  and  April  of  each  year,  he  shall  pay  interest  at  the  rate  of 
six  per  cent  per  annum.  Approved  March  6,  1905.  (Laws  1905,  p.  60.) 


TENNESSEE  STATUTE.  691 

CHAPTER  LII. 

TENNESSEE  STATUTE. 

(Acts  of  189S,  cc.  89,  174;  Shannon's  Code  (1906),  pp.  S88-S89 ;  Shannon's 
Supp.  Code  (1897-1903),  pp.  107,  108;  Acts  of  1909,  p.  1761.) 

9  1134.  Transfers  Subject  to  Tax — Eates — Exemptions. 

§  1135.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  1136.  Estate  for  Years  or  for  Life  and  Eemainders — Time  of  Payment. 

§  1137.  Estate  for  Years  or  for  Life  and  Remainders — Valuation. 

§  1138.  Lien  of  Tax — Report  of  Personal  Property  and  Security  for  Tax. 

§  1139.  Interest  and  Discount. 

§  1140.  Collection  of  Tax  by  Executor. 

§  1141.  Legacy  for  Limited  Period  or  upon  Contingency. 

§  1142.  Legacy  Charged  upon  Real  Estate. 

§  1143.  Information  of  Transfers  to  Clerk  of  County  Court. 

§  1144.  Payment  to  Clerk  of  County  Court — Receipts  and  Vouchers. 

§  1145.  Transfer  of  Stock  or  Loans  by  Foreign  Executor. 

§  1146.  Refund  of  Tax  in  Case  of  Debts  Proved  After  Distribution. 

§  1147.  Appraisers  and  Appraisement. 

§  1148.  Appraiser  Receiving  More  Than  Regular  Fees — Penalty. 

§  1149.  Records  to  be  Kept  by  Clerk  of  Court. 

§  1150.  Proceedings  to  Enforce  Tax. 

§  1151.  Sale  of  Property  to  Pay  Tax. 

§  1152.  Time  for  Bringing  Suit  to  Enforce  Tax. 

§  1153.  Trial  and  Appeal — Attorney  Fees. 

5  1154.  Proceedings  Where  Clerk  Discovers  Unpaid  Tax. 

§  1155.  Suit  by  Clerk  to  Enforce  Tax. 

§  1156.  Jurisdiction  of  County  Courts — Appeals. 

§  1157.  Fees  and  Costs  in  County  and  Circuit -Courts." 

§  1158.  Suits  by  Clerk — Fees — Attorneys — Parties — Costs. 

§  1159.  Bond  of  Clerk  of  Court. 

§  1160.  Payment  of  Tax  to  State  Treasurer. 

9  1161.  Lien  of  Tax. 

§  1162.  Attorney  General  to  Represent  Government. 

§  1163.  Bond  of  Executors. 

§  1164.  Duty  of  Chancery  Court  to  See  Tax  Paid — Receipts  and  Vouchers. 

§  1165.  Appraisers — Oath  and  Compensation. 

§  1166.  Definition  of   "County  Court." 

§  1134.    Transfers  Subject  to  Tax — Rates — Exemptions. 

Sec.  724.  All  estates — real,  personal  and  mixed — of  every  kind  what- 
soever, situated  within  this  state,  whether  the  person  or  persons  dying 
seised  thereof  be  domiciled  within  or  out  of  this  state,  passing  from  any 
person  who  may  die  seised  or  possessed  of  such  estates,  either  by  will,  or 
under  the  intestate  laws  of  this  state,  or  any  part  of  such  estate  or  estates, 


692  INHERITANCE  TAXATION. 

or  interest  therein,  transferred  by  deed,  grant,  bargain,  gift,  or  sale,  made 
in  contemplation  of  death,  or  intended  to  take  effect  in  possession  or  en- 
joyment after  the  death  of  the  grantor  or  bargainer  to  any  person  or 
persons,  or  to  bodies  corporate  or  politic,  in  trust  or  otherwise,  other  than 
to  or  for  the  use  of  the  father,  mother,  brother,  sister,  the  wife  or  widow 
of  a  son,  or  husband  of  a  daughter,  or  any  child  or  children  adopted  as 
such  in  conformity  with  the  laws  of  the  state  of  Tennessee,  husband,  wife, 
children,  and  lineal  descendants  born  in  lawful  wedlock  of  the  person 
dying  seised  and  possessed  thereof,  shall  be  subject  to  a  duty  or  tax  of 
five  dollars,  on  every  hundred  dollars  of  the  clear  value  of  such  estate  or 
estates  so  passing,  and  at  and  after  the  same  rate  for  any  less  amount,  to 
be  paid  to  the  use  of  the  state;  and  all  owners  of  such  estates  and  all 
executors  and  administrators  and  their  sureties  shall  only  be  discharged 
from  liability  for  the  amount  of  such  taxes  or  duties  the  settlement  of 
which  they  may  be  charged  with,  by  having  paid  the  same  over  for  the 
use  of  the  state  as  hereinafter  directed;  but  no  estate  which  may  be  valued 
at  a  less  sum  than  two  hundred  and  fifty  dollars  shall  be  subject  to  this 
duty  or  tax.  (Shan.  Code  (1906),  p.  282.) 

Inheritances  not  taxed  under  the  present  laws  shall  pay  a  tax  as  fol- 
lows: All  inheritances  of  five  thousand  dollars  and  over,  but  less  than  twenty 
thousand  dollars  a  tax  of  one  per  centum  of  their  value.  All  inheritances 
of  twenty  thousand  dollars  and  over,  a  tax  of  one  and  one-fourth  per 
centum  of  their  value,  to  be  collected  by  the  county  court  clerk  of  each 
county.*  (Acts  1909,  p.  1761.) 

§  1135.     Bequest  to  Executor  in  Lieu  of  Compensation. 

Sec.  725.  Where  a  testator  names  or  appoints  one  or  more  executors, 
and  makes  a  bequest  or  devise  of  property  to  them  in  lieu  of  their  com- 
missions or  allowance,  or  appoints  them  his  residuary  legatees,  and  said 
bequests,  devises,  or  residuary  legacies  exceed  what  would  be  a  fair  com- 
pensation for  their  services,  such  excess  shall  be  subject  to  the  payment 
of  the  collateral  inheritance  tax  or  duty,  the  rate  of  compensation  to  be 
fixed  by  the  proper  officers  or  courts  having  jurisdiction  in  the  case.  (Shan. 
Code  (1906),  p.  283.) 

§  1136.  Estate  for  Years  or  for  Life  and  Remainders — Time  of  Payment. 
Sec.  726.  In  all  cases  where  there  shall  be  a  devise,  bequest,  or  descent 
of  an  estate,  real  or  personal,  to  collateral  relatives  or  strangers  liable  to 
the  collateral  inheritance  and  succession  tax,  to  take  effect  in  possession 
or  to  come  into  actual  enjoyment  after  the  expiration  of  one  or  more  life 
estates,  or  a  period  of  years,  the  tax  on  such  estate  shall  not  be  payable, 
nor  interest  begin  to  run  thereon,  until  the  person  or  persons  liable  for 


*This  section  is  a  repeal,  by  implication,  of  so  much  of  the  acts  of  1893  as  ex- 
empted from  the  payment  of  the  collateral  inheritance  tax  the  parties  already 
named,  and  placed  on  them  a  burden  common  to  all  others  who  took  from 
deceased  persons.  This  section  of  the  act  of  1909  comes  as  a  supplement  to 
that  of  1893,  without  so  describing  itself,  and  simply  widens  the  collateral 
inheritance  tax  system.  The  two  acts  are  in  pari  materia:  Knox  v.  Emerson 
(Tenn,),  131  S.  W.  972. 


TENNESSEE  STATUTE.  693 

the  same  shall  come  into  actual  possession  of  such  estate  by  the  termination 
of  the  estates  for  life  or  years.     (Shan.  Code  (1906),  p.  283.) 

§  1137.    Estate  for  Years  or  for  Life  and  Remainders — Valuation. 

Sec.  727.  The  tax  shall  be  assessed  upon  the  value  of  the  estate  at  the 
time  the  right  of  possession  accrues  to  the  owner  as  aforesaid;  but  he  shall 
have  the  right  to  pay  the  tax  at  any  time  prior  to  his  coming  iinto  posses- 
sion; and  in  such  cases  the  tax  shall  be  assessed  on  the  value  of  the  estate 
at  the  time  of  the  payment  of  the  tax,  after  deducting  the  value  of  the 
life  estate  or  estates  for  years.  (Shan.  Code  (1906),  p.  283.) 

§  1138.    Lien  of  Tax — Report  of  Personal  Property  and  Security  for  Tax. 

Sec.  728.  The  tax  on  all  real  estate  shall  be  and  remain  a  lien  on  the 
real  estate  on  which  the  same  is  chargeable  until  paid;  and  the  owner  of 
any  personal  estate  subject  to  the  tax  provided  by  sections  724  to  756, 
inclusive,  shall  make  a  full  report  and  return  of  the  same  to  the  clerk 
of  the  county  court  of  the  proper  county  within  one  year  from  the  death 
of  the  decedent,  and  within  that  time  enter  into  security  for  the  payment 
of  the  tax  to  the  satisfaction  of  such  clerk;  and  in  case  of  failure  so  to 
do,  the  tax  shall  be  immediately  payable  and  collectible.  (Shan.  Code  (1906), 
p.  283.) 

§  1139.     Interest  and  Discount. 

Sec.  729.  If  the  collateral  inheritance  tax  shall  be  paid  within  three 
months  after  the  death  of  the  decedent,  a  discount  of  five  per  centum  on 
the  amount  of  the  tax  shall  be  made  and  allowed;  and  if  said  tax  is  not 
paid  at  the  end  of  one  year  from  the  death  of  the  decedent,  at  which  time 
it  shall  be  due,  interest  shall  then  be  charged  at  the  rate  of  six  per  centum 
per  annum  on  such  tax.  (Shan.  Code  (1906),  p.  284.) 

§  1140.    Collection  of  Tax  by  Executor. 

Sec.  730.  The  executor  or  administrator  or  other  trustee  paying  any 
legacy  or  share  in  the  distribution  of  any  estate  subject  to  the  collateral 
inheritance  tax,  as  provided  by  sections  724  to  756,  inclusive,  shall  deduct 
therefrom  at  the  rate  of  five  dollars  in  every  hundred  dollars  upon  the 
whole  legacy  or  sum  paid;  or,  if  not  money,  he  shall  demand  payment  of  a 
sum-,  to  be  computed  at  the  same  rate,  upon  the  appraised  value  thereof, 
for  the  use  of  the  state;  and  no  executor  or  administrator  shall  be  com- 
pelled to  pay  or  deliver  any  specific  legacy  or  article  to  be  distributed, 
subject  to  tax,  except  on  the  payment  into  his  hands  of  a  sum  computed 
on  its  value,  as  aforesaid;  and  in  case  of  neglect  or  refusal  on  the  part  of 
said  legatee  or  distributee  to  pay  the  same,  such  specific  legacy  or  article, 
or  so  much  thereof  as  shall  be  necessary,  shall  be  sold  by  such  executor 
or  administrator* at  public  sale,  for  cash,  after  notice  to  such  legatee  or 
distributee,  and  after  ten  days'  advertisement,  as  in  case  of  ordinary 
administrator's  sales,  and  the  balance  that  may  be  left  in  the  hands  of  the 
executor  or  administrator,  after  reserving  the  tax,  shall  be  distributed  to 
the  legatee  or  distributee,  as  is  or  may  be  directed  by  law;  and  every  sum 


694  INHERITANCE   TAXATION. 

of  money  retained  by  any  executor  or  administrator,  or  paid  into  his  hands 
on  account  of  any  legacy  or  distributive  share,  for  the  use  of  the  state, 
shall  be  paid  by  him  without  delay  to  the  county  court  clerk  of  the  county  in 
which  his  accounts  are  being  administered.  (Shan.  Code  (1906),  p.  284.) 

§  1141.    Legacy  for  Limited  Period  or  upon  Contingency. 

Sec.  731.  If  the  legacy  subject  to  the  collateral  inheritance  tax  be  given 
to  any  person  for  life,  or  for  a  term  of  years,  or  for  any  other  limited 
period,  upon  a  condition  or  contingency,  if  the  same  be  money,  the  tax 
thereon  shall  be  retained  upon  the  whole  amount;  but,  if  not  money,  appli- 
cation shall  be  made  to  the  county  court  having  jurisdiction  of  the  accounts 
of  the  executors  or  administrators  to  make  apportionment,  if  the  case  re- 
quires it,  of  the  sum  to  be  paid  by  such  legatees,  and  for  such  further 
order  relative  thereto  as  equity  shall  require.  Such  application  shall  be 
made  by  the  executor  of  such  estate  after  at  least  five  days'  notice  to  the 
parties  concerned.  (Shan.  Code  (1906),  p.  284.) 

§  1142.    Legacy  Charged  upon  Real  Estate. 

Sec.  732.  Wherever  a  legacy  subject  to  the  tax  or  duty  hereby  pro- 
vided, shall  be  charged  upon  or  payable  out  of  real  estate,  the  heir  or 
devisee,  before  paying  the  same,  shall  deduct  therefrom  at  the  rate  afore- 
said, and  pay  the  amount  so  deducted  to  the  executor,  and  the  same  shall 
remain  a  charge  and  lien  upon  such  real  estate  until  paid,  and  the  pay- 
ment thereof  shall  be  enforced  by  decree  of  the  county  court  in  the  same 
manner  that  liens  on  real  estate  are  now  enforced,  in  the  chancery  courts  of 
this  state,  and  the  clerk  of  the  county  court  officially  shall  be  the  complainant 
in  such  suit.  (Shan.  Code  (1906),  p.  284.) 

§  1143.    Information  of  Transfers  to  Clerk  of  County  Court. 

Sec.  733.  Whenever  any  real  estate  of  which  any  decedent  may  die 
seised  shall  be  subject  to  the  collateral  inheritance  tax,  it  shall  be  the  duty 
of  executors  and  administrators  to  give  Information  thereof  to  the  clerk 
of  the  county  court  where  administration  has  been  granted,  within  six 
months  after  they  undertake  tne  execution  of  their  respective  duties;  or, 
if  the  fact  be  not  known  to  them  within  that  period,  within  one  month 
after  the  same  shall  have  come  to  their  knowledge;  and  it  shall  be  the 
duty  of  the  owners  of  such  estate,  immediately  upon  the  vesting  of  'the 
estate,  to  give  information  thereof  to  such  clerk  of  the  court  having  juris- 
diction of  the  granting  of  administration.  (Shan.  Code  (1906),  p.  284.) 

§  1144.    Payment  to  Clerk  of  County  Court — Receipts  and  Vouchers. 

Sec.  734.  It  shall  be  the  duty  of  any  executor  or  administrator  receiving  or 
collecting  collateral  inheritance  tax,  to  pay  the  same  to  the  clerk  of  the  county 
court  granting  the  administration,  and  where  his  accounts  should  be  ad- 
ministered, and  to  take  duplicate  receipts  from  such  clerk  for  the  same, 
one  of  which  shall  be  forwarded  forthwith  to  the  controller  of  the  treas- 
ury, whose  duty  it  shall  be  to  charge  the  clerk  receiving  the  money  with 
the  amount,  and  countersign  the  receipt  and  return  it  to  the  executor  or 


TENNESSEE  STATUTE.  695 

administrator,  whereupon  it  shall  be  a  proper  voucher  in  the  settlement 
of  the  estate;  but  in  no  event  shall  an  executor  or  administrator  be  entitled 
to  a  credit  in  the  settlement  of  his  accounts  with  the  county  court  clerk, 
or  in  the  chancery  court,  if  his  accounts  be  there  settled,  unless  the  receipt 
is  so  countersigned  by  the  controller.  (Shan.  Code  (1906),  p.  285.) 

§  1145.     Transfer  of  Stock  or  Loans  by  Foreign  Executor. 

Sec.  735.  Whenever  any  foreign  executor  or  administrator  or  trustee 
shall  assign  or  transfer  any  stocks  or  loans  in  this  state  standing  in  the 
name  of  the  decedent,  or  in  trust  for  a  decedent,  which  shall  be  liable 
for  the  collateral  inheritance  tax,  such  tax  shall  be  paid,  on  the  transfer 
thereof,  to  the  clerk  of  the  county  court  where  such  transfer  is  made;  other- 
wise the  corporation  or  person  permitting  such  transfer  shall  become  liable 
to  pay  such  tax.  (Shan.  Code  (1906),  p.  285.) 

§  1146.     Refund  of  Tax  in  Case  of  Debts  Proved  After  Distribution. 

Sec.  736.  Whenever  debts  shall  be  proven  against  the  estate  of  a  decedent 
after  distribution  of  shares  or  legacies  from  which  the  collateral  inher- 
itance tax  has  been  deducted,  in  compliance  with  sections  724  to  756,  in- 
clusive, and  the  legatee  or  distributee  is  required  to  refund  any  portion 
of  a  legacy'  or  share,  a  corresponding  portion  of  said  tax  shall  be  repaid 
to  him  by  the  executor  or  administrator  if  the  said  tax  has  not  been  paid 
to  the  clerk;  and,  if  it  has  been  so  paid  to  the  clerk,  then  it  shall  be  repaid 
out  of  the  state  treasury  upon  the  controller's  warrant,  to  be  drawn  by 
him  in  favor  of  the  person  entitled  thereto,  upon  the  county  clerk  certifying, 
under  his  seal  of  office,  that  the  same  is  justly  due  on  account  of  the  pro- 
visions of  this  section.  (Shan.  Code  (1906),  p.  285.) 

§  1147.    Appraisers  and  Appraisement. 

Sec.  737.  It  shall  be  the  duty  of  the  clerk  of  the  county  court  in  which 
letters  testamentary  or  of  administration  are  granted,  to  appoint  an  ap- 
praiser as  often  as  and  whenever  occasion  may  require,  to  fix  the  valua- 
tion of  estates  which  are  or  shall  be  subject  to  collateral  inheritance  tax; 
and  it  shall  be  the  duty  of  such  appraiser  to  make  a  fair  and  conscionable 
appraisement  of  such  estates;  and  it  shall  further  be  the  duty  of  such 
appraiser  to  assess  and  fix  the  cash  value  of  all  annuities  and  life  estate 
growing  out  of  said  estates,  upon  which  annuities  and  life  estates  the 
collateral  inheritance  tax  shall  be  immediately  payable,  out  of  the  estate, 
at  the  rate  of  such  valuation,  but  shall  bear  no  interest  till  the  lapse  of 
twelve  months  from  the  death  of  the  decedent;  and,  in  fixing  the  value 
of  such  annuities  and  life  estate,  the  computation  shall  be  made  by  the  Car- 
lyle  Life  Tables,  whenever  the  use  of  life  tables  is  necessary  or  applicable. 
Said  appraisements  shall  be  reduced  to  writing,  in  the  nature  of  a  report, 
and  shall  be,  by  the  appraiser,  filed  with  the  clerk  appointing  him;  and 
any  interested  person  not  satisfied  with  said  appraisement  shall  have  the 
right,  at  any  time  within  thirty  days  after  such  appraisement  is  filed  with 
the  clerk,  to  file  exceptions  thereto,  in  writing,  on  giving  security  to  pay 
all  costs,  together  with  whatever  tax  shall  be  fixed  by  the  county  court, 


696  INHERITANCE   TAXATION. 

and  thereupon,  to  have  the  county  court  to  hear  said  exceptions;  and,  upon 
such  exceptions  being  filed,  the  county  court  shall  have  jurisdiction  to 
determine  all  questions  of  valuation,  and  of  the  liability  of  the  appraised 
estate  for  such  tax,  subject  to  the  right  of  appeal  to  the  circuit  court  (or 
court  of  like  jurisdiction)  as  in  other  cases.  If  an  appeal  should  be  prose- 
cuted to  the  circuit  court,  such  cause  shall  there  be  heard  de  novo.  (Shan. 
Code  (1906),  p.  285.) 

§  1148.    Appraiser  Eeceiving  More  Than  Regular  Fees — Penalty. 

Sec.  738.  It  shall  be  a  misdemeanor  in  any  appraiser  appointed  by  the 
county  court  clerk  to  make  any  appraisement  in  behalf  of  the  state,  to  take 
any  fee  or  reward  from  any  executor,  administrator,  legatee,  next  of  kin, 
or  heir  of  any  decedent;  and,  for  any  such  offense,  the  clerk  shall  dismiss 
him  from  such  service,  and,  upon  conviction,  he  shall  be  fined  not  exceeding 
five  hundred  dollars  and  imprisoned  in  the  county  jail  not  exceeding  one 
year  (one  or  both),  and  the  court  shall  have  the  power  to  assess  the  im- 
prisonment, if  the  jury  does  not  do  so,  as  well  as  a  fine,  within  the  limit  of 
the  power  of  the  court.  (Shan.  Code  (1906),  p.  286.) 

§  1149.    Records  to  be  Kept  by  Clerk  of  Court. 

Sec.  739.  It  shall  be  the  duty  of  the  county  court  clerks  to  enter  in  a 
book  to  be  provided  at  the  expense  of  the  state,  to  be  kept  for  that  purpose, 
and  which  shall  be  a  public  record,  the  returns  made  by  all  appraisers  under 
sections  724  to  756,  inclusive,  opening  an  account  in  favor  of  the  state 
against  the  decedent's  estate,  and  the  county  court  clerk  may  give  certificate 
of  payment  of  such  tax  from  said  record;  and  it  shall  be  the  duty  of  said 
clerk  to  transmit  to  the  controller,  on  the  first  day  of  each  month,  a  state- 
ment of  all  reports  or  returns  marie  by  appraisers  during  the  preceding 
month,  which  statement  shall  be  entered  by  the  controller  in  a  book  to  be 
kept  by  him  for  that  purpose.  (Shan.  Code  (1906),  p.  286.) 

§  1150.    Proceedings  to  Enforce  Tax. 

Sec.  740.  Whenever  any  such  tax  on  real  estate  shall  have  remained  due 
and  unpaid  for  one  year,  it  shall  be  the  duty  of  the  county  clerk,  in  his 
official  name  as  clerk,  to  apply  to  the  county  court,  by  bill  or  petition,  to 
enforce  the  payment  of  the  same;  whereupon,  after  process-  is  duly  served 
or  notice  duly  given  to  the  owner  of  the  real  estate  charged  with  the  tax, 
and  to  such  other  persons  as  may  be  interested,  after  the  manner  of  the 
practice  of  the  chancery  courts,  the  county  court  shall  proceed,  according 
to  equity,  to  make  such  decrees  and  orders  for  the  enforcement  of  the  lien 
and  the  payment  of  said  tax  out  of  such  real  estate  as  shall  be  just  and 
proper,  the  county  court  being  hereby  invested  with  jurisdiction  for  said 
purposes;  and  any  sales  of  real  estate  made  hereunder  shall  be  made  on  a 
credit  of  not  less  than  six  nor  more  than  twenty-four  months,  barring  the 
right  of  redemption  as  in  chancery  sales.  (Shan.  Code  (1906),  p.  286.) 

§  1151.     Sale  of  Property  to  Pay  Tax. 

Sec.  741.  If  no  one  bids  an  amount  at  such  sales  sufficient  to  cover  the 
taxes  due  and  costs,  the  clerk  of  the  county  court,  by  himself  or  agent, 


TENNESSEE  STATUTE.  697 

shall  bid  the  land  in  for  the  state,  biddirig  an  amount  deemed  suflic/ent  to 
cover  said  taxes  due  and  costs;  and,  in  this  event,  upon  confirmation  of  the 
report  of  sale,  a  writ  of  possession  may  be  issued  to  place  the  state  or  its 
agents  in  possession  of  such  real  estate,  and  so  as  to  any  other  purchaser. 
If  the  state  so  become  the  purchaser  of  real  estate,  the  cost  of  the  cause 
shall  be  paid  by  the  state,  the  controller  drawing  his  warrant  therefor  in 
favor  of  such  clerk  upon  the  clerk  certifying  such  cost  bill  to  the  con- 
troller. (Shan.  Code  (1906),  p.  286.) 

§  1152.     Time  for  Bringing  Suit  to  Enforce  Tax. 

Sec.  742.  If  said  clerk  knows  any  good  and  sufficient  reason  why  the 
payment  of  such  tax  has  been  delayed,  he  shall  not  be  compelled  to  file 
such  bill  immediately  upon  said  tax  becoming  due,  but  may,  in  his  dis- 
cretion, postpone  the  bringing  of  such  suit  to  such  time  as  he  deems  proper, 
within  the  limits  of  sections  724  to  756,  inclusive.  (Shan.  Code  (1906),  p. 
286.) 

§  1153.     Trial  and  Appeal — Attorney  Fees. 

Sec.  743.  If  the  court  adjudges  such  tax  to  be  due,  and  a  charge  upon 
the  real  estate,  it  shall  tax  up,  as  a  part  of  the  costs,  a  reasonable  at- 
torney's fee  for  the  clerk's  solicitor  or  attorney  in  the  case,  to  be  collected 
out  of  the  land  as  the  said  tax  and  other  costs.  Appeals  from  final  decrees 
in  suits  under  this  section  shall  lie  to  the  circuit  court,  where  an  additional 
attorney's  fee  for  services  in  that  court  shall  be  taxed  up  as  costs  (if  the 
said  tax  be  found  due  and  a  lien  on  the  land)  in  favor  of  the  attorney 
general  of  the  circuit,  who  shall  attend  to  such  suits  in  the  circuit  court, 
such  fee  to  be  fixed  by  the  court.  In  the  trial  of  suits  under  this  section 
in  the  county  court,  the  proof  may  be  heard  orally  or  by  deposition;  but, 
on  appeal,  the  cause  shall  be  heard  on  the  record  brought  up.  (Shan.  Code 
(1906),  p.  287.) 

§  1154.    Proceedings  Where  Clerk  Discovers  Unpaid  Tax. 

Sec.  744.  If  the  clerk  of  the  county  court  shall  discover  that  any  col- 
lateral inheritance  tax  has  not  been  paid  over  according  to  law,  he  shall 
cause  notice  to  be  served  upon  the  executors,  administrators,  legatees,  or 
distributees,  as  the  case  may  be,  of  the  decedent,  whose  estate  is  subject 
to  the  tax,  notifying  them  to  appear  before  the  county  court  on  a  certain 
day,  which  need  not  be  the  first  day  of  the  term,  and  show  cause  why  the 
said  tax  should  not  be  paid;  and,  when  personal  service  cannot  be  had, 
notice  shall  be  given  for  four  weeks,  once  a  week,  in  a  newspaper  published 
or  circulating  in  the  county,  and  the  matter  shall  be  heard  by  said  court, 
on  written  or  oral  testimony;  and,  if  the  tax  should  be  found  due  and  un- 
paid, the  said  delinquent  shall  pay  the  tax  and  cost,  and  the  said  court  shall 
enter  such  judgment  and  orders  to  this  end  as  may  be  needful  to  enforce  the 
collection  of  the  tax  and  costs.  Such  notice  shall  be  served  at  least  five 
days  before  the  time  set  therein  for  appearance,  and,  if  by  publication,  the 
last  publication  shall  be  at  least  five  days  before  the  time  of  appearance. 
(Shan.  Code  (1906),  p.  287.) 


698  INHERITANCE   TAXATION. 

§  1155.     Suit  by  Clerk  to  Enforce  Tax. 

Sec.  745.  Instead  of  the  remedy  in  the  last  section,  the  clerk  may  enforce 
the  collection  of  such  delinquent  tax  by  bill  filed  in  his  name  as  clerk,  in 
the  county  court,  to  be  proceeded  with  after  the  manner  of  chancery  suits, 
and  if  he  so  proceeds  by  bill,  he  may  obtain  writs  of  attachment  against 
the  property  of  the  delinquents,  if  there  be  grounds  for  attachments  as 
provided  by  law,  or  writs  of  injunction,  if  there  be  grounds  for  the  same. 
(Shan.  Code  (1906),  p.  287.) 

§  1156.     Jurisdiction  of  County  Courts — Appeals. 

Sec.  746.  The  county  courts  are  invested  with  full  jurisdiction  to  hear 
and  determine  such  suits1  as  if  a  court  of  equity  for  this  purpose.  But  in 
such  cases  the  testimony  before  the  county  court  may  be  either  oral  or  in 
writing.  From  final  judgments,  decrees,  or  orders  in  the  county  courts  in 
suits  or  proceedings  provided  by  this  and  the  last  section,  appeals  shall  lie 
to  the  circuit  court,  in  which  court  the  cause  shall  be  heard  de  novo,  if 
commenced  by  notice  in  the  county  court;  but,  if  commenced  by  bill,  it 
shall  be  heard  only  upon  the  record.  If  the  delinquent  be  the  appellant, 
he  shall  give  bond  upon  appeal,  not  only  for  the  costs,  but  also  to  pay  the 
tax  due,  if  he  is  cast  in  the  suit.  (Shan.  Code  (1906),  p.  287.) 

§  1157.    Fees  and  Costs  in  County  and  Circuit  Courts.  ; 

See.  747.  In  said  appeals,  the  attorney  general  of  the  circuit  shall  attend 
to  the  suits  for  the  clerk  or  state  in  the  circuit  court,  and  his  fee  and  that 
of  the  clerk's  attorneys  in  the  county  court,  if  the  delinquent  (be)  held 
liable,  shall  be  taxed  up  as  costs  by  the  respective  courts,  substantially  as 
provided  in  section  743.  (Shan.  Code  (1906),  p.  287.) 

§  1158.     Suits  by  Clerk — Fees — Attorneys — Parties — Costs. 

Sec.  748.  The  clerks  of  the  county  courts  of  the  several  counties  of  the 
state  shall  be  the  agents  of  the  state  for  the  collection  of  the  collateral  in- 
heritance and  succession  tax,  or  duty  provided  for  by  sections  724  to  756, 
inclusive,  and  for  their  services  rendered  in  collecting  and  paying  over  the 
same,  they  shall  be  allowed  to  retain  five  per  centum  on  all  such  taxes  paid 
over  and  accounted  for;  and  it  shall  be  the  duty  of  said  clerks,  whenever 
necessary,  to  employ  an  attorney  to  aid  them  in  collecting,  by  suits,  the  said 
collateral  inheritance  tax,  the  fees  of  such  attorneys  to  be  taxed  up  by  the 
court  as  costs  against  the  delinquent,  if  he  shall  be  held  liable,  such  fees  to 
be  reasonable.  Any  such  suits  are,  on  the  one  side,  to  run  in  the  official 
name  of  the  clerk,  and  may  be  reviewed  in  the  name  of  his  successor  in 
office,  but  he  is  not  required  to  give  any  bonds  for  costs  in  bringing  suits, 
or  on  appeals;  and,  if  suits  are  decided  against  him,  judgment  shall  be  given 
against  the  state  for  costs,  and  the  state  shall  pay  the  same,  unless  the 
court  should  be  of  the  opinion  that  the  suit  brought  or  the  appeal  prosecuted 
by  the  said  clerk  was  malicious  or  frivolous,  in  which  event,  the  court  shall 
tax  the  cost  against  the  clerk  individually;  and,  when  the  costs,  expenses, 
and  attorneys'  fees  cannot  be  collected  out  of  the  delinquent,  when  ad- 
judged against  him,  or  when  the  costs  are  adjudged  against  the  state,  the 


TENNESSEE  STATUTE.  699 

controller  is  authorized  and  empowered,  in  settlement  of  accounts  of  such 
clerks  (clerk),  to  allow  him  to  retain  such  costs  and  reasonable  attorneys' 
fees  incurred  in  the  collection  of  soieh  taxes.  The  fact  that  the  clerk  is  a 
party  to  such  suits  shall  not  render  him  incompetent  to  issue  writs,  sub- 
poenas, notices,  etc.,  in  guch  suits,  and,  for  the  same,  he  shall  be  entitled 
to  receive  the  same  fees  as  allowed  by  law  for  such  services,  and  also  the 
usual  fees  for  making  out  transcripts  on  appeals.  (Shan.  Code  (1906),  p. 
288.) 

§  1159.     Bond  of  Clerk  of  Court. 

Sec.  749.  When  any  clerk  of  the  county  court  is  inducted  into  office,  the 
bond  required  by  law  to  be  given  by  him  to  account  for  all  revenues 
collected  by  him  for  the  state  shall  cover  and  be  liable  for  the  taxes  re- 
ceived and  collected  by  him  in  virtue  of  sections  724  to  756,  inclusive;  and, 
if  that  bond  be  executed  and  approved,  no  other  or  special  bond  need  be 
given  by  him  to  account  for  revenues  collected  under  said  sections.  (Shan. 
Code  (1906),  p.  288.) 

§  1160.    Payment  of  Tax  to  State  Treasurer. 

Setf.  750.  It  shall  be  the  duty  of  the  clerk  of  the  county  court  to  make 
return  and  payment  to  the  treasurer  of  the  state,  in  the  usual  method,  of 
all  the  collateral  inheritance  taxes  he  shall  have  received  for  the  previous 
quarter,  stating  for  what  estates  paid,  on  the  first  day  of  April,  July, 
October,  and  January  in  each  year,  and,  for  all  such  taxes  collected  by  him 
and  not  paid  over  within  one  month  after  his  quarterly  returns  of  the  same 
is  or  should  be  made,  he  shall  pay  interest,  by  way  of  penalty,  at  the  rate 
of  twelve  per  centum  per  annum  until  paid.  (Shan.  Code  (1906),  p.  288.) 

§  1161.    Lien  of  Tax. 

Sec.  751.  The  lien  of  the  collateral  inheritance  tax  shall  continue  until 
the  tax  is  settled  and  satisfied,  but  the  said  lien  shall  be  limited  to  the 
property  chargeable  therewith;  and  all  collateral  inheritance  tax  (taxes) 
shall  be  sued  for  within  five  years  after  they  are  due  and  legally  demand- 
able,  otherwise  they  shall  be  presumed  to  have  been  paid,  and  cease  to  be  a 
lien  as  against  any  purchasers  of  real  estate.  (Shan.  Code  (1906),  p.  288.) 

§  1162.    Attorney  General  to  Represent  Government. 

Sec.  752.  In  suits  arising  under  sections  724  to  756,  inclusive,  which  may 
be  carried  to  the  supreme  court,  the  attorney  general  of  the  state  shall 
represent  the  clerk  of  the  county  court  and  the  state  in  that  court.  (Shan. 
Code  (1906),  p.  288.) 

§  1163.    Bond  of  Executors. 

Sec.  753.  The  bonds  of  all  executors  and  administrators  which  are  re- 
quired to  be  given  by  law,  shall  be  liable  for  the  faithful  discharge  by 
them  of  all  duties  imposed  upon  them  by  sections  724  to  756,  inclusive, 
including  the  faithful  paying  over  by  them  of  all  collateral  inheritance 
taxes  that  may  come  to  their  hands;  and  any  trustee  whose  duties  are 


700  INHERITANCE  TAXATION. 

similar  to  those  of  an  executor,  or  who  has  the  dividing  or  disposing  of  an 
estate  of  a  decedent,  is  included  in  said  sections  under  the  term  executor. 
(Shan.  Code  (1906),  p.  288.) 

§  1164.  Duty  of  Chancery  Court  to  See  Tax  Paid — Receipts  and  Vouchers. 
Sec.  754.  In  all  cases  where  an  estate  is  being  wound  up  or  administered 
in  a  chancery  court,  it  shall  be  the  duty  of  that  court  to  see  that  the  col- 
lateral inheritance  tax  is  paid  to  the  clerk  of  the  county  court,  if  such  estate 
be  liable  for  such  tax,  and  to  see  that  such  tax  is  paid  or  retained  before  a 
legacy  or  share  of  an  estate  is  paid  or  turned  over  to  the  owner;  and,  if 
any  such  tax  is  received  by  the  clerk  and  master,  it  shall  be  ordered  paid  by 
him  to  the  county  court  clerk,  and  upon  such  payment  being  made  by  a 
clerk  and  master,  he  shall  take  duplicate  receipts  from  the  county  court 
clerk,  and  transmit  one  of  them  to  the  controller,  who  shall  countersign 
it  and  return  it,  and  it  shall  only  be  a  good  voucher  to  the  clerk  and  master 
upon  its  being  so  countersigned,  (Shan.  Code  (1906),  p.  289.) 

§  1165.    Appraisers — Oath  and  Compensation. 

Sec.  755.  The  appraiser  provided  for  by  sections  724  to  756,  inclusive, 
shall  be  sworn  by  the  county  court  clerk  to  faithfully  and  impartially  per- 
form his  duty,  and  to  make  due  returns,  in  writing,  of  his  action  in  the 
premises,  with  a  written  statement  appended  of  the  length  of  time  spent 
by  him  in  appraising  the  particular  property,  and  the  necessary  expense, 
by  items,  incurred  by  him  traveling  to  and  from  the  property,  if  there  be 
such  expense;  and  for  his  services  the  appraiser  shall  receive  two  dollars 
per  day  for  the  time  necessarily  spent  in  such  service,  and  his  actual 
traveling  expenses  in  addition,  to  be  paid  him  by  said  clerk  out  of  any 
collateral  inheritance  tax  coming  to  his  hands,  and  for  which  the  clerk 
shall  receive  credit.  Said  clerk  shall  have  the  right  to  audit  any  such  cost 
bill  of  an  appraiser,  and  to  reduce  the  amount  of  the  same,  if  satisfied  it  is 
incorrect,  and  it  shall  be  his  duty  to  do  so.  (Shan.  Code  (1906),  p.  289.) 

§  1166.     Definition  of  "County  Court." 

Sec.  756.  The  term  "county  court,"  used  in  sections  724  to  756,  inclusive, 
shall  be  construed  to  apply  to  the  county  courts  presided  over  and  held 
by  the  chairman  or  county  judge,  and  not  to  the  quarterly  county  courts. 
(Shan.  Code  (1906),  p.  289.) 


TEXAS  STATUTE.  701 

CHAPTER  MIL 

TEXAS  STATUTE. 

(Acts  of  1907,  pp.  497-505;  Supplement  to  Sayles'  Texas  Civil  Statutes  of 
1908-10,  pp.  S87-S9S.) 

§  1167.  Transfers  Subject  to  Tax — Rates  of  Taxation. 

§  1168.  Estates  for  Years  or  for  Life  and  Remainder. 

§  116y.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  1170.  Inventory  to  be  Filed  by  Executor. 

§  1171.  Proceedings  When  No  Administration  Applied  for. 

§  1172.  Appraisers  and  Appraisement. 

§  1173.  Determination  of  Amount  of  Tax — Lien  and  Interest. 

§  1174.  Collection  of  Tax  by  Executor — Sale  of  Property. 

§  1175.  Legacy  Charged  upon  Real  Estate. 

§  1176.  Payment  to  Collector  of  Taxes — Receipts. 

§  1177.  Action  to  Recover  Tax  from  Executor. 

§  1178.  Payment  to  State  Treasurer. 

§  1179.  Deposits  of  Moneys  as  General  Revenue  Fund. 

§  1180.  Refund  in  Case  of  Debts  Proved  After  Distribution. 

§  1181.  Account  of  Executor  not  Allowed  Until  Taxes  Paid. 

§  1182.  Proceedings  Where  No  Administration  Necessary. 

§  1167.     Transfers  Subject  to  Tax — Rates  of  Taxation. 

Sec.  1.  All  property  within  the  jurisdiction  of  this  state,  real  or  per- 
sonal, corporeal  or  incorporeal,  and  any  interest  therein,  whether  belonging 
to  inhabitants  of  this  state  or  not,  which  shall  pass,  absolutely  or  in  trust, 
by  will,  or  by  the  laws  of  descent  of  this  or  any  other  state,  or  by  deed, 
grant,  sale  or  gift,  made  or  intended  to  take  effect  in  possession  or  'enjoy- 
ment after  the  death  of  the  grantor  or  donor,  shall  upon  passing  to  or  for 
the  use  of  any  person  except  the  father,  mother,  husband,  wife  or  direct 
lineal  descendants  of  the  testator,  intestate,  grantor  or  donor,  or  any 
public  corporation  or  charitable,  educational  or  religious  organization 
within  this  state  when  such  bequest,  gift  or  devise  is  to  be  used  for  char- 
itable, educational  or  religious  purposes  within  this  state,  be  subject  to  a 
tax  for  the  benefit  of  the  state,  as  follows: 

(1)  If  passing  to  or  for  the  use  of  a  lineal  ascendant  or  a  brother  or 
sister,  or  a  lineal  descendant  of  a  brother  or  sister,  the  tax  shall  be  two 
per  cent  on  any  value  in  excess  of  two  thousand  dollars,  and  not  exceed- 
ing ten  thousand  dollars;  two  and  one-half  per  cent  of  any  value  in  excess 
of  ten  thousand  dollars,  and  not  exceeding  twenty-five  thousand  dollars; 
three  per  cent  on  any  value  in  excess  of  twenty-five  thousand  dollars,  and 
not  exceeding  fifty  thousand  dollars;  three  and  one-half  per  cent  on  any 
value  in  excess  of  fifty  thousand  dollars,  and  not  exceeding  one  hundred 
thousand  dollars;  four  per  cent  on  any  value  in  excess  of  one  hundred 
thousand  dollars,  and  not  exceeding  five  hundred  thousand  dollars;  and  five 
per  cent  on  any  value  in  excess  of  live  hundred  thousand  dollars. 


702  INHERITANCE  TAXATION. 

(2)  If  passing  to  or  for  the  use  of  an  uncle  or  aunt,  or  a  lineal  descend- 
ant of  an  uncle  or  aunt  of  the  decedent,  the  tax  shall  be  three  per  eent 
on  any  value  in  excess  of  one  thousand  dollars,  and  not  exceeding  ten  thousand 
dollars;   four  per  cent  on  any  value  in  excess  of  ten  thousand  dollars,  and 
not  exceeding  twenty-five  thousand  dollars;  five  per  cent  on  any  value  in  ex- 
cess of  twenty-five  thousand  dollars,  and  not  exceeding  fifty  thousand  dol- 
lars; six  per  cent  on  any  value  in  excess  of  fifty  thousand  dollars  and  not 
exceeding  one  hundred  thousand  dollars;  seven  per  cent  on  any  value  in 
excess  of  one  hundred  thousand   dollars,  and  not  exceeding  five  hundred 
thousand  dollars,  and  eight  per  cent  on  any  value  in  excess  of  five  hundred 
thousand  dollars. 

(3)  If  passing  to  or  for  the  use  of  any  other  person,  natural  or  artificial, 
the  tax  shall  be  four  per  cent  of  any  value  in  excess  of  five  hundred  dollars, 
and  not  exceeding  ten  thousand  dollars;  five  and  one-half  per  cent  on  any 
value  in  excess  of  ten  thousand  dollars,  and  not  exceeding  twenty-five  thou- 
sand dollars;  seven  per  cent  on  any  value  in  excess  of  twenty-five  thousand 
dollars  and  not  exceeding  fifty  thousand  dollars;    eight   and   one-half  per 
cent  on  any  value  in  excess  of  fifty  thousand  dollars,  and  not  exceeding  one 
hundred  thousand   dollars;    ten   per   cent   on   any  value  in   excess    of   one 
hundred  thousand  dollars  and  not  exceeding  five  hundred  thousand  dollars, 
and  twelve  per  cent  on  any  value  in  excess  of  five  hundred  thousand  dol- 
lars.    (Supp.  Sayles'  Tex.  Civ.  Stats.  1908-10,  p.  388.) 

§  1168.     Estates  for  Tears  or  for  Life  and  Remainder. 

Sec.  2.  If  the  property  passing  as  aforesaid  shall  be  divided  into  two 
or  more  estates,  as  an  estate  for  years  or  for  life  and  a  remainder,  the 
tax  shall  be  levied  on  each  estate  in  interest  separately  according  to  the 
value  of  the  same  at  the  death  of  the  decedent.  The  value  of  estates  for 
years,  estates  for  life,  remainders  and  annuities  shall  be  determined  by  the 
"Actuaries'  Combined  Experience  Tables,"  at  four  per  cent  compound  in- 
terest. (Supp.  Sayles'  Tex.  Civ.  Stats.  1908-10,  p.  3S9.) 

§  1169.    Bequest  to  Executor  in  Lieu  of  Compensation. 

Sec.  3.  If  a  testator  bequeaths  or  devises  to  his  executor  or  trustee, 
property  in  lieu  of  the  latters  commission,  the  value  of  such  property  in 
excess  of  reasonable  compensation,  as  determined  by  the  county  judge  on 
his  own  motion,  or  on  the  application  of  any  officer  on  behalf  of  the  state, 
shall  be  subject  to  taxation  under  this  act.  (Supp.  Saylea'  Tex.  Civ.  Stats. 
1908-10,  p.  389.) 

§  1170.    Inventory  to  be  Filed  by  Executor. 

Sec.  4.  Every  executor,  administrator  and  trustees  [trustee]  of  the  es- 
tate of  a  decedent  leaving  property  subject  to  taxation  under  this  act, 
whether  such  property  passes  by  will  or  by  the  laws  of  descent  or  other- 
wise, shall,  within  three  months  after  his  appointment,  make  and  file  an 
inventory  thereof  in  the  county  court  having  jurisdiction  of  the  estate  of 
the  decedent.  Any  executor,  administrator  or  trustee  refusing  or  neglecting 
to  comply  with  the  provisions  of  this  section  shall  be  liable  to  a  penalty 


TEXAS  STATUTE.  703 

not  exceeding  one  thousand  dollars  to  be  recovered  in  an  action  brought 
in  behalf  of  the  state  by  the  district  or  county  attorney  upon  notice  from 
the  judges  of  the  county  court.  (Supp.  Sayles*  Tex.  Civ.  Stats.  1908-10, 
p.  389.) 

§  1171.    Proceedings  Wlien  No  Administration  Applied  for. 

Sec.  5.  If  within  three  months  after  the  death  of  a  decedent  leaving 
property  subject  to  taxation  under  this  act  no  application  for  letters  tes- 
tamentary or  of  administration  shall  be  made,  it  shall  be  the  duty  of  the 
county  court  to  appoint  an  administrator.  It  shall  be  the  duty  of  the 
county  attorney  to  report  to  the  judge  of  the  county  court  all  such  estates, 
whether  the  property  subject  to  taxation  passes  by  will  or  by  laws  of 
descent  or  otherwise.  For  each  decedent's  estate  thus  reported  the  county 
attorney  shall  receive  a  compensation  of  ten  per  cent  of  the  tax  payable, 
but  not  to  exceed  twenty  dollars  in  any  one  estate.  Such  payment  shall  be 
made  by  the  collector  of  taxes,  on  the  certificate  of  the  county  judge, 
out  of  the  taxes  paid  him  on  property  belonging  to  such  estate.  (Supp. 
Sayles'  Tex.  Civ.  Stats.  1908-10,  p.  389.) 

§  1172.    Appraisers  and  Appraisement. 

Sec.  0.  Said  tax  shall  be  assessed  upon  the  actual  or  market  value  of 
the  property.  The  judge  of  the  county  court  having  jurisdiction  of  the 
estate  of  the  decedent,  shall,  as  often  as  and  whenever  occasion  may  require, 
appoint  two  competent  disinterested  persons  as  appraisers  to  fix  the  value 
of  property  subject  to  said  tax.  The  appraisers,  being  first  sworn,  shall 
forthwith  give  notice  to  all  persons  known  to  have  a  claim  or  interest  in  the 
property  to  be  appraised,  including  the  executor,  administrator  or  trustee, 
and  the  collector  of  taxes  of  the  county,  of  the  time  and  place  when  they 
will  appraise  the  same.  At  tnidh  time  and  place  they  shall  appraise  such 
property  at  its  actual  or  market  value  at  the  time  of  the  death  of  the  dece- 
dent, and  shall  thereupon  make  report  thereof  in  writing  to  said  county 
judge,  who  shall  file  such  report.  Each  appraiser  shall  be  paid,  on  the  cer- 
tificate of  the  county  judge,  two  dollars  for  each  day  employed  in  such 
appraisal,  together  with  his  actual  necessary  expenses  incurred  therein, 
which  payments  shall  be  made  by  the  collector  of  taxes  out  of  any  moneys 
in  his  hands  received  under  this  act;  provided,  however,  that  upon  the 
agreement  of  the  parties  interested  to  dispense  with  the  appointment  of 
appraisers  the  county  judge  shall  himself  appraise  the  property  and  make 
and  file  a  report  thereof.  If  the  same  decedent  shall  leave  property  sub- 
ject to  this  tax  to  more  than  one  person,  a  separate  appraisal  and  report 
shall  be  made  for  the  property  of  each  person,  (Supp.  Sayles'  Tex.  Civ. 
Stats.  1908-10,  p.  390.) 

5  1173.    Determination  of  Amount  of  Tax — Lien  and  Interest. 

Sec.  7.  Immediately  upon  the  filing  of  the  report  of  the  appraisement, 
the  county  judge  shall  calculate  and  determine  the  amount  of  tax  due  on 
such  property  under  this  act,  and  shall  in  writing  certify  such  amount  to 
the  collector  of  taxes,  to  the  executor,  administrator  or  trustee,  and  to 


704  INHERITANCE  TAXATION. 

the  person  to  whom  or  for  whose  use  the  property  passes.  Said  tax  shall 
be  a  lien  upon  such  property  from  the  death  of  the  decedent  until  paid, 
and  shall  bear  interest  from  such  death  until  paid,  unless  payment  shall  be 
made  within  six  months  after  such  death,  in  which  case  no  interest  shall 
be  charged.  (Supp.  Sayles'  Tex.  Giv.  Stats.  1908-10,  p.  390.) 

§  1174.    Collection  of  Tax  by  Executor — Sale  of  Property. 

Sec.  8.  If  such  property  be  in  the  form  of  money,  the  executor,  admin- 
istrator or  trustee  shall  deduct  the  amount  of  the  tax  therefrom  before 
paying  it  to  the  party  entitled  thereto;  if  it  be  not  in  the  form  of  money, 
he  shall  withhold  the  property  until  the  payment  by  such  party  of  the 
amount  of  the  tax;  in  any  case  the  executor,  administrator  or  trustee  shall 
be  liable  for  the  amount  of  the  tax  and  shall  have  the  right,  in  case  of 
neglect  or  refusal  after  due  notice  of  the  party  entitled  to  the  property 
to  pay  such  amount,  to  sell,  at  public  sale,  after  due  notice  to  such  party, 
the  t  property,  or  so  much  thereof  as  may  be  necessary.  Out  of  the  sum 
realized  on  such  sale,  the  executor,  administrator  or  trustee  shall  deduct 
the  amount  of  the  tax  and  the  expenses  of  the  sale,  and  shall  pay  the 
balance  to  the  party  entitled  thereto.  (Supp.  Sayles'  Tex.  Civ.  Stats. 
1908-10,  p.  390.) 

§  1175.    Legacy  Charged  upon  Real  Estate. 

Sec.  9.  Whenever  any  legacy  subject  to  said  tax  shall  be  charged  upon 
or  payable  out  of  real  estate,  the  heir  or  devisee,  before  paying  the  legacy, 
shall  deduct  the  amount  of  the  tax  therefrom,  and  pay  the  amount  so  de- 
ducted to  the  executor,  administrator  or  trustee;  the  amount  of  the  tax 
shall  remain  a  charge  on  suc'h  real  estate  until  paid,  and  the  payment 
thereof  shall  be  enforced  by  the  executor  or  trustee  in  the  same  manner 
as  the  payment  of  the  legacy  itself  could  be  enforced.  (Supp.  Sayles'  Tex. 
Civ.  Stats.  1908-10,  p.  391.) 

§  1176.    Payment  to  Collector  of  Taxes — Receipts. 

Sec.  10.  All  taxes  received  under  this  act  by  any  executor,  administrator 
or  trustee,  shall  be  paid  by  him  within  thirty  days  thereafter  to  the  collector 
of  taxes  of  the  county  whose  county  court  has  jurisdiction  of  the  estate  of 
the  decedent.  Upon  such  payment,  the  collector  shall  make  duplicate  re- 
ceipts thereof;  he  shall  deliver  one  to  the  party  making  payment,  the  other 
he  shall  send  to  the  controller  of  public  accounts,  who  shall  charge  the 
collector  with  the  amount  thereof,  and  shall  countersign  and  affix  his  seal 
of  office  to  such  receipt  and  transmit  same  to  the  party  making  payment. 
(Supp.  Sayles'  Tex.  Civ.  Stats.  1908-10,  p.  391.) 

§  1177.    Action  to  Recover  Tax  from  Executor. 

Sec.  11.  In  case  such  tax  shall  not  be  paid  to  ihe  collector  of  taxes 
within  six  months  after  the  county  judge  has  notified  the  amount  thereof 
as  hereinbefore  provided,  the  collector  shall  commence  an  action  to  recover 
the  amount  of  such  tax  against  the  executor,  administrator  or  trustee,  and 
the  party  to  whom  or  for  whose  use  the  property  has  passed;  provided, 


TEXAS  STATUTE.  .705 

that  the  county  judge  may  by  certificate  to  the  collector  extend  the  time 
of  payment  whenever  the  circumstances  of  the  case  require.  (Supp.  Sayles' 
Tex.  Civ.  Stata.  1908-10,  p.  391.) 

§  1178.    Payment  to  State  Treasurer. 

Sec.  12.  The  collector  of  taxes  of  eacli  county  shall,  on  or  before  the 
fifteenth  day  of  each  month,  pay  to  the  state  treasurer  all  taxes  received 
by  him  under  this  act  before  the  first  day  of  that  month,  deducting  there- 
from all  lawful  disbursements  made  by  him  under  this  act,  and  also  his 
compensation  at  the  rate  of  one  per  cent  of  all  taxes  collected  under  this 
act.  (Supp.  Sayles'  Tex.  Civ.  Stats.  1908-10,  p.  391.) 

§  1179.    Deposits  of  Moneys  as  General  Revenue  Fund. 

Sec.  13.  The  moneys  received  by  the  state  treasurer  under  this  act 
shall  be  deposited  in  the  state  treasury  to  the  credit  of  the  fund  now  there 
existing  and  known  as  the  general  revenue  fund.  (Supp.  Sayles'  Tex.  Civ. 
Stats.  1908-10,  p.  391.) 

§  1180.    Refund  in  Case  of  Debts  Proved  After  Distribution. 

Sec.  14.  Whenever  any  debts  shall  be  proven  against  the  estate  of  a  de- 
cedent after  the  distribution  of  property  on  w*hich  the  tax  has  been  paid, 
and  a  refund  is  made  by  the  distributee,  a  due  proportion  of  the  tax  so  paid 
shall  be  repaid  to  him  by  the  executor,  administrator  or  trustee,  if  still 
in  his  hands,  or  by  the  collector  of  taxes  if  it  has  been  paid  to  him.  The 
collector  shall  pay  sudh  sums  upon  the  order  of  the  county  judge  out  of 
any  money  in  his  possession*  under  this  act;  and  the  controller  of  public 
accounts  shall  credit  the  collector  with  all  sums  so  paid  out  by  him.  (Supp. 
Sayles'  Tex.  Civ.  Stats.  1908-10,  p.  391,) 

§  1181.    Account  of  Executor  not  Allowed  Until  Taxes  Paid. 

Sec.  15.  No  final  account  of  an  executor,  administrator  or  trustee  shall 
be  allowed  by  the  county  judge  unless  such  account  shows,  and  said  judge 
finds,  that  all  taxes  imposed  under  thig  act  on  any  property  or  interest 
passing  through  his  hands  as  such  have  been  paid;  and  the  receipt  of  the 
collector  of  taxes  for  such  taxes  shall  be  the  proper  voucher  for  such  pay- 
ment. (Supp.  Sayles'  Tex,  Civ.  Stats.  1908-10,  p.  392.) 

§  1182.    Proceedings  Where  No  Administration  Necessary. 

Sec.  16.  If  for  any  reason  administration  of  the  estate  of  a  decedent 
leaving  property  subject  to  taxation  under  this  act,  shall  not  be  necessary 
in  this  state,  except  in  order  to  carry  out  the  provisions  of  this  act,  it  shall 
be  in  the  discretion  of  the  county  judge  upon  the  filing  of  a  satisfactory 
inventory  of  the  taxable  property  by  the  trustee  or  owner,  to  dispense  with 
the  appointment  of  an  administrator.  Upon  the  filing  of  such  inventory, 
the  appraisement  and  other  proceedings  required  by  this  act  shall  be  had 
as  in  other  cases.  (Supp.  Sayles*  Tex.  Civ.  Stats.  1908-10,  p.  392.) 
45 


706  INHERITANCE   TAXATION. 


CHAPTER  LIV. 
UTAH  STATUTE. 

(Laws  of  1905,  pp.   198-309.) 

9  1183.  Transfers  Subject  to  Tax — Kates — Lien  of  Tax — Exemptions. 

{  1184.  Deduction    of    Debts. 

§  1185.  Appointment  of  Appraisers. 

§  1186.  Appraiser  Keceiving  Illegal  Fees — Penalty. 

§  1187.  Issuance  of  Commissions  to  Appraisers. 

§  1188.  Notice  and  Filing  of  Appraisement. 

§  1189.  Objections  to  Appraisement  and  Hearing  Thereon. 

§  1190.  Action    in    Pending   Cases. 

§  1191.  Time  for  Appraisement  and  Assessment — Sale~x>f  Property  to  Pay 

Tax. 

§  1192.  Estates  for  Years  or  for  Life  and  Kemainders. 

§  1193.  Bequests  to  Executors  in  Lieu  of  Compensation. 

§  1194.  Legacies   Charged   upon   Real   Estate. 

§  1195.  Collection  of  Tax  by  Executor. 

§  1196.  Payment  to  State  Treasurer — Interest. 

§  1197.  Collection  of  Tax  by  Executor. 

§  1198.  Account  of  Executor  not  Settled  Until  Tax  Paid. 

§   1199.  Jurisdiction  of  District  Court. 

§  1200.  Information  to  be  Furnished  by  Executor  to  State  Treasurer. 

§  1201.  Inheritance  Tax  and  Lien  Book  to  be  Kept  by  Clerk. 

§  1202.  Report  of  Executor — Entry  of  Real  Estate  in  Lien  Book. 

§  1203.  Extension  of  Time  for  Appraisement. 

§  1204.  Entries  in  Tax  and  Lien  Books — Index. 

§  1205.  Record  to  be  Kept  by  Clerk. 

§  1206.  Duty  of  Clerk  to  Make  Examinations  and  Investigations. 

§  1207.  Duties  of  Court  and  District  Attorney. 

§  1208.  Costs  of  Proceedings. 

§  1209.  Transfer  or  Delivery  of  Deposits  or  Assets — Notice. 

§  1210.  Foreign  Estates — Assessment  of  Tax. 

§  1211.  Foreign  Estates — Assessment  and  Payment  of  Tax. 

§  1212.  Transfer  of  Corporate  Stock  by  Foreign  Executor. 

§  1213.  Compromise  by  State  Treasurer. 

§  1214.  Application  of  Statute  to  Pending  Estates. 

§  1215.  Repeal  of  Prior  Statutes. 

§  1216.  Time  When  Statute  Takes  Effect. 

§  1183.     Transfers  Subject  to  Tax — Bates — Lien  of  Tax — Exemptions. 

Sec.  1.  All  property  within  the  jurisdiction  of  this  state  and  any  in- 
terest therein,  whether  belonging  to  the  inhabitants  of  this  state  or  not, 
and  whether  tangible  or  intangible,  which  shall  pass  by  will  or  by  the 
statutes  of  inheritance  of  this  or  any  other  state,  or  by  deed,  grant,  sale 


UTAH  STATUTE.  707 

or  gift  made  or  intended  to  take  effect  in  possession  or  enjoyment  after  the 
death  of  the  grantor  or  donor,  to  any  person  in  trust  or  otherwise,  shall  be 
subject  to  a  tax  of  five  per  centum  of  its  market  value  above  the  sum 
of  ten  thousand  dollars,  after  the  payment  of  all  debts,  for  the  use  of  the 
state;  and  all  administrators,  executors  and  trustees,  and  any  such  grantee 
under  conveyance,  and  such  donee  under  a  gift  made  during  the  grantor's  or 
donor's  life,  shall  be  respectively  liable  for  all  such  taxes  to  be  paid  by 
them  respectively,  except  as  herein  otherwise  provided,  with  lawful  interest 
as  hereinafter  set  forth  until  the  same  shall  have  been  paid.  The  tax 
aforesaid  shall  be  and  remain  a  lien  on  such  estate  from  the  death  of  the 
decedent  until  paid.  In  determining  the  amount  of  tax  to  be  paid  under 
the  provisions  of  this  section,  after  the  payment  of  all  debts  the  sum  of 
ten  thousand  dollars  shall  be  deducted  from  the  entire  estate  and  the  tax 
shall  be  computed  and  paid  on  the  entire  remainder;  and  the  court  shall 
determine  the  amount  of  tax  to  be  paid  by  the  several  devisees,  legatees, 
grantees  or  donees  of  the  decedent.  (Laws  1905,  p.  198.) 

§  1184.    Deduction  of  Debts. 

Sec.  2.  The  term  "debts"  as  used  in  this  chapter,  shall  include,  in  addi- 
tion to  debts  owing  by  decedent  at  the  time  of  his  death,  the  local  or  state 
taxes  due  from  the  estate  prior  to  his  death,  a  reasonable  sum  for  funeral 
expenses,  the  court  costs,  the  cost  of  appraisement  made  for  the  purpose 
of  assessing  the  inheritance  tax,  the  statutory  fees  of  executors,  adminis- 
trators or  trustees,  and  no  other  sum;  but  said  debts  shall  not  be  deducted 
unless  the  same  are  approved  and  allowed,  within  fifteen  months  from  the 
death  of  decedent,  as  established  claims  against  the  estate,  unless  other- 
wise ordered  by  the  judge  of  the  proper  county.  (Laws  1905,  p.  198.) 

§  1185.    Appointment  of  Appraisers, 

Sec.  3.  In  each  county  the  court  shall  annually  appoint  three  compe- 
tent residents  and  freeholders  of  said  county,  to  act  as  appraisers  of  all 
property  within  its  jurisdiction,  which  is  charged  or  sought  to  be  charged 
with  an  inheritance  tax.  Said  appraisers  shall  serve  for  one  year,  and 
until  their  successors  are  appointed  and  qualified.  They  shall  each  take 
an  oath  to  faithfully  and  impartially  perform  the  duties  of  the  office,  but 
shall  not  be  required  to  give  bond.  They  shall  be  subject  to  removal  at  any 
time  at  the  discretion  of  the  court,  and  the  court,  or  judge  thereof  in 
vacation,  may  also  in  its  discretion,  either  before  or  after  the  appointment 
of  the  regular  appraisers,  appoint  other  appraisers  to  act  in  any  given  case. 
Vacancies  occurring  otherwise  than  by  expiration  of  term,  shall  be  filled  by 
the  appointment  of  the  court,  or  by  a  judge  in  vacation.  (Laws  1905,  p. 
198.) 

§  1186.    Appraiser  Receiving  Illegal  Fees — Penalty. 

Sec.  4.  Any  appraiser  appointed  by  this  act  who  shall  take  any  fee  or 
reward  from  any  executor,  administrator,  trustee,  legatee,  next  of  kin  or 
heir  of  any  decedent,  or  from  any  other  person  liable  to  pay  said  tax  or 
any  portion,  thereof,  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 


708  INHERITANCE   TAXATION. 

in  any  court  having  jurisdiction  of  misdemeanors,  he  shall  be  fined  not  less 
than  two  hundred  and  fifty  dollars  nor  more  than  five  hundred  dollars  and 
imprisoned  not  exceeding  ninety  days,  and  in  addition  thereto  the  judge 
shall  dismiss  him  from  such  service.  (Laws  1905,  p.  199.) 

§  1187.     Issuance  of  Commissions  to  Appraisers. 

Sec.  5.  When  an  estate  is  opened  in  which  there  is  property  which  may 
be  subject  to  the  inheritance  tax,  the  clerk  shall  forthwith  issue  a  com- 
mission to  the  appraisers,  who  shall  fix  a  time  and  place  for  appraisement. 
(Laws  1905,  p.  199.) 

§  1188.    Notice  and  Filing  of  Appraisement. 

Sec.  6.  It  shall  be  the  duty  of  all  appraisers  appointed  under  the  pro- 
visions of  this  act  to  forthwith  give  notice  to  the  state  treasurer  and  other 
persons  known  to  be  interested  in  the  property  to  be  appraised,  of  the  time 
and  place  at  which  they  will  appraise  such  property,  which  time  shall  not 
be  less  than  ten  days  from  the  date  of  such  notice.  The  notice  shall  be 
served  in  the  same  manner  as  is  prescribed  for  the  commencement  of  civil 
actions,  and  if  not  practicable  to  serve  the  notice  provided  for  by  statute, 
they  shall  apply  to  the  court  or  a  judge  in  vacation  for  an  order  as  to  notice 
and  upon  service  of  such  notice  and  the  making  of  such  appraisement,  the 
said  notice,  return  thereon  and  appraisement  shall  be  filed  with  the  clerk, 
and  a  copy  of  such  appraisement  shall  be  filed  by  the  clerk  with  the  state 
treasurer.  (Laws  1905,  p.  199.) 

§  1189.     Objections  to  Appraisement  and  Hearing  Thereon. 

Sec.  7.  The  state  treasurer  or  any  person  interested  in  the  estate  ap- 
praised, may,  within  twenty  days  thereafter,  file  objections  to  said  appraise- 
ment, on  the  hearing  of  which  as  an.  action  in  equity,  either  party  may 
produce  evidence  competent  or  material  to  the  matters  therein  involved. 
If,  upon  such  hearing,  the  court  finds  the  amount  at  which  the  property  is 
appraised  is  at  its  value  on  the  market  in  the  ordinary  course  of  trade,  and 
the  appraisement  was  fairly  and  in  good  faith  made,  it  shall  approve  such 
appraisement;  but  if  it  finds  that  the  appraisement  was  made  at  a  greater 
or  less  sum  than  the  value  of  the  property  in  the  ordinary  course  of  trade, 
or  that  the  same  was  not  fairly  or  in  good  faith  made,  it  shall  set  aside  the 
appraisement,  appoint  new  appraisers,  and  so  proceed  until  a  fair  and  good 
appraisement  of  the  property  is  made  at  its  value  in  the  market  in  the 
ordinary  course  of  trade.  The  state  treasurer,  or  anyone  interested  in  the 
property  appraised,  may  appeal  to  the  supreme  court  from  the  order  of  the 
district  court  approving  or '  setting  aside  any  appraisement  to  which  ex- 
ceptions have  been  filed.  Notice  of  appeal  shall  be  served  within  thirty 
days  from  the  date  of  the  order  appealed  from,  and  the  appeal  shall  be 
perfected  in  the  time  now  provided  for  appeals  in  equitable  actions.  In 
case  of  appeal,  the  appellant,  if  he  is  not  the  state  treasurer,  shall  give  bond 
to  be  approved  by  the  clerk  of  the  court,  to  pay  the  tax,  which  bond  shall 
provide  that  the  said  appellant  and  sureties  shall  pay  the  tax  for  which  the 
property  may  be  liable  with  cost  of  appeal.  If  upon  the  hearing  of  objec- 


UTAH  STATUTE.  709 

tions  to  the  appraisement,  the  court  finds  that  the  property  is  not  subject  to 
the  tax,  the  court  shall  upon  expiration  of  time  for  appeal,  when  no  appeal 
has  been  taken,  order  the  clerk  to  enter  upon  the  lien  book  a  cancellation 
of  any  claim  or  lien  for  taxes.  If  at  the  end  of  twenty  days  from  the  filing 
of  the  appraisement  with  the  clerk,  no  objections  are  filed,  the  appraisement 
shall  stand  approved.  (Laws  1905,  p.  199.) 

§  1190.    Action  in  Pending  Cases. 

Sec.  8.  In  all  cases  where  the  property  of  an  estate  has  been  subject  to 
or  liable  for  the  payment  of  the  tax  provided  in  this  act,  or  where  such 
property  has  heretofore  been  appraised  and  the  tax  not  yet  paid,  and  the 
notice  required  in  this  act  was  not  given,  it  shall  be  the  duty  of  the  court, 
immediately  upon  the  taking  effect  of  this  act,  to  enforce  such  tax,  or  to 
set  aside  any  appraisement  heretofore  made,  and  order  a  reappraisement  of 
the  same  to  be  made  as  in  this  act  provided,  anything  in  the  law  contrary 
notwithstanding.  (Laws  1905,  p.  200.) 

§  1191.     Time  for  Appraisement  and  Assessment — Sale  of  Property  to  Pay 
Tax. 

Sec.  9.  All  the  property  of  the  decedent  subject  to  such  tax  shall,  except 
as  hereinafter  provided,  be  appraised  within  thirty  days  next  after  the  ap- 
pointment of  an  executor,  administrator  or  trustee,  at  its  market  value  in 
the  ordinary  course  of  trade,  and  the  tax  thereon,  calculated  upon  the 
appraised  market  value  after  deducting  debts  for  which  the  estate  is  liable, 
shall  be  paid  by  the  persons  entitled  to  said  estate  within  fifteen  months 
from  the  death  of  the  testator  or  intestate,  unless  a  longer  period  is  fixed 
by  the  court,  and,  in  default  thereof,  the  court  shall  order  the  same,  or  so 
much  thereof  as  may  be  necessary  to  pay  such  tax,  to  be  sold.  (Laws  1905, 
p.  200.) 

§  1192.    Estates  for  Years  or  for  Life  and  Remainders. 

Sec.  10.  Whenever  any  real  estate  of  a  decedent  shall  be  subject  to  such 
tax,  and  there  be  a  life  estate  or  interest  for  a  term  of  years  given  to  one 
party  or  parties,  and  the  remainder  to  another  party  or  parties,  the  court 
shall  direct  the  interest  of  the  life  estate,  or  term  of  years,  to  be  appraised 
at  its  market  value  in  the  ordinary  course  of  trade,  and,  upon  the  approval 
of  such  appraisement  by  the  court,  the  party  entitled  to  such  life  estate,  or 
term  of  years,  shall,  within  sixty  days  thereafter,  pay  such  tax,  and  in  de- 
fault thereof  the  court  shall  order  such  interest  in  said  estate,  or  so  much 
thereof  as  shall  be  necessary  to  pay  such  tax,  to  be  sold.  Upon  the  de- 
termination of  such  life  estate,  or  term  of  years,  the  court  shall,  upon  its 
own  motion,  or  upon  the  application  of  the  state  treasurer,  cause  such  estate 
to  be  appraised  at  its  then  market  value  in  the  ordinary  course  of  trade, 
from  which  shall  be  deducted  the  value  of  any  improvements  thereon,  or 
betterments  thereto,  if  any,  made  by  the  remainderman  during  the  time  of 
the  prior  estate,  to  be  ascertained  and  determined  by  the  appraisers,  and 
the  tax  on  the  remainder  shall  be  paid  by  such  remainderman  within  sixty 
days  from  the  approval  by  the  court  of  the  appraisers.  If  such  tax  is  not 


710  INHERITANCE  TAXATION. 

paid  within  said  time,  the  court  shall  then  order  said  real  estate,  or  so  much 
thereof  as  shall  be  necessary  to  pay  such  tax,  to  be  sold.  Whenever  any 
personal  estate  of  a  decedent  shall  be  subject  to  such  tax  and  there  be  a  life 
estate  or  interest  for  a  term  of  years  given  to  one  party  or  parties,  and  the 
remainder  to  another  party  or  parties,  the  court  shall  inquire  into  and 
determine  the  market  value  in  the  ordinary  course  of  trade,  of  the  life 
estate  or  interest  for  the  term  of  years  and  order  and  direct  the  amount  of 
the  tax  thereon  to  be  paid  by  the  prior  estate  and  that  to  be  paid  by  the 
remainderman,  each  of  -whom  shall  pay  his  proportion  of  the  tax  within 
sixty  days  from  such  determination,  unless  a  longer  period  is  fixed  by  the 
court,  and,  in  default  thereof,  the  executor,  administrator  or  trustee,  shall 
pay  the  same  out  of  said  property  and  hold  the  same  from  distribution,  and 
invest  it  at  interest  under  the  order  of  the  court  until  said  tax  is  paid,  or 
until  the  interest  on  the  same  equals  the  amount  of  such  tax,  which  shall 
thereupon  be  paid.  (Laws  1905,  p.  200.) 

§  1193.    Bequests  to  Executors  in  Lieu  of  Compensation. 

Sec.  11.  Whenever  a  decedent  appoints  one  or  more  executors  or  trustees 
and  in  lieu  of  his  or  their  allowance  or  commission  makes  a  bequest  or 
devise  of  property  to  him  or  them,  which  would  otherwise  be  liable  to  said 
tax,  or  appoints  them  as  residuary  legatees,  and  said  bequests,  devises  or 
residuary  legacies  exceed  what  would  be  a  reasonable  compensation  for  his 
or  their  services,  such  excess  shall  be  liable  to  such  tax,  and  the  court  hav- 
ing jurisdiction  of  his  or  their  accounts,  upon  its  own  motion  or  on  applica- 
tion of  the  state  treasurer,  shall  fix  such  compensation.  (Laws  1905,  p.  201.) 

§  1194.    Legacies  Charged  upon  Real  Estate. 

See.  12.  Whenever  any  legacies  subject  to  said  tax  are  charged  upon  or 
payable  out  of  any  real  estate,  the  heir  or  devisee,  before  paying  the  same 
shall  deduct  said  tax  therefrom  and  pay  it  to  the  executor,  administrator, 
trustee  or  state  treasurer,  and  the  same  shall  remain  a  charge  and  be  a  lien 
upon  said  real  estate  until  it  is  paid;  and  payment  thereof  shall  be  enforced 
by  the  executor,  administrator,  trustee  or  state  treasurer  in  his  name  of 
office,  in  the  same  manner  as  the  payment  of  the  legacy  itself  could  be 
enforced.  (Laws  1905,  p.  201.) 

§  1195.    Collection  of  Tax  by  Executor. 

Sec.  13.  Every  executor,  administrator  or  trustee  having  in  charge  or 
trust  any  property  subject  to  said  tax,  and  which  is  made  payable  by  him, 
shall  deduct  the  tax  therefrom,  or  shall  collect  the  tax  thereon  from  the 
legatee  or  person  entitled  to  said  property,  and  he  shall  not  deliver  any 
specific  legacy  or  property  subject  to  said  tax  to  any  person  until  he  has 
collected  the  tax  thereon.  (Laws  1905,  p.  202.) 

§  1196.    Payment  to  State  Treasurer — Interest. 

Sec.  14.  All  taxes  imposed  by  this  act  shall  be  payable  to  the  state 
treasurer,  and  those  which  are  made  payable  by  executors,  administrators 
or  trustees  shall  be  paid  within  fifteen  months  from  the  death  of  the  testator 


UTAH  STATUTE.  711 

or  intestate,  unless  a  longer  period  is  fixed  by  the  court,  or  a  judge  thereof  in 
vacation.  All  taxes  not  paid  within  fifteen  months  from  death  of  the 
testator  or  intestate,  shall  draw  interest  at  the  rate  of  eight  per  centum  per 
annum  until  paid.  (Laws  1905,  p.  202.) 

§  1197.    Collection  of  Tax  by  Executor. 

Sec.  15.  It  is  hereby  made  the  duty  of  all  executors,  administrators  or 
trustees  charged  with  the  management  or  settlement  of  any  estate  subject 
to  the  tax  provided  for  in  this  act,  to  collect  and  pay  to  the  state  treasurer 
the  amount  of  the  tax  due  from  any  devisee,  legatee,  grantee  or  donee  of 
the  decedent,  except  in  cases  falling  under  the  provisions  of  sections  nine 
and  ten  hereof,  in  which  cases  the  state  treasurer  shall  collect  the  same. 
Applications  may  be  made  to  the  district  court  by  such  executor,  ad- 
ministrator, trustee  or  state  treasurer  to  sell  the  real  estate  subject  to  said 
tax  in  an  equitable  action,  or,  if  made  to  the  court  having  charge  of  the 
settlement  of  the  estate,  the  proceedings  shall  conform  as  nearly  as  may 
be  to  those  for  the  sale  of  real  estate  of  decedent  for  the  settlement  of  his 
debts.  (Laws  1905,  p.  202.) 

§  1198.    Account  of  Executor  not  Settled  Until  Tax  Paid. 

Sec.  16.  No  final  settlement  of  the  account  of  any  executor,  administrator 
or  trustee  shall  be  accepted  or  allowed  unless  it  shall  show,  and  the  court 
shall  find,  that  all  taxes  imposed  by  the  provisions  of  this  act  upon  any 
property  or  interest  therein  belonging  to  the  estate  to  be  paid  by  such 
executors,  administrators  or  trustees,  and  to  be  settled  by  said  account,  shall 
have  been  paid,  and  the  receipt  of  the  state  treasurer  for  such  tax  shall  be 
the  proper  voucher  for  such  payment.  (Laws  1905,  p.  202.) 

§  1199.    Jurisdiction  of  District  Court. 

See.  17.  The  district  court  having  either  principal  or  ancillary  jurisdic- 
tion of  the  settlement  of  the  estate  of  the  decedent  shall  have  jurisdiction 
to  hear  and  determine  all  questions  in  relation  to  said  tax  that  may  arise 
affecting  any  devise,  legacy  or  inheritance,  or  any  grant  or  gift,  under  this 
act,  subject  to  appeal  as  in  other  cases,  and  the  state  treasurer  shall  in  his 
name  of  office  represent  the  interests  of  the  state  in  any  proceedings.  (Laws 
1906,  p.  202.) 

§  1200.    Information  to  be  Furnished  by  Executor  to  State  Treasurer. 

Sec.  18.  Before  issuing  his  receipt  for  the  tax,  the  state  treasurer  may 
demand  from  executors,  administrators  or  trustees,  such  information  as  may 
be  necessary  to  verify  the  correctness  of  the  amount  of  the  tax  and  interest, 
and  when  demanded,  they  shall  send  such  treasurer  certified  copies  of  such 
parts  of  their  reports  as  be  may  demand,  and  upon  the  refusal  of  said  parties 
to  comply  with  the  demand  of  the  state  treasurer,  it  is  the  duty  of  the  clerk 
of  the  court  to  comply  with  such  demand,  and  the  expenses  of  making  such 
copies  and  transcripts  shall  be  charged  against  the  estate,  as  are  other  costs 
in  probate.  (Laws  1905,  p.  203.) 


712  INHERITANCE   TAXATION. 

§  1201.    Inheritance  Tax  and  Lien  Book  to  be  Kept  by  Clerk. 

Sec.  19.  The  clerk  of  the  district  court  in  and  for  each  county,  where  an 
inheritance  tax  is  charged  or  sought  to  be  charged,  shall  provide  and  keep 
a  suitable  book,  substantially  bound  and  suitably  ruled,  to  be  known  as  the 
inheritance  tax  and  lien  book,  in  which  shall  be  kept  a  full  and  accurate 
record  of  all  proceedings  in  cases  where  property  is  charged  or  sought  to  be 
charged  with  the  payment  of  an  inheritance  tax  under  the  laws  of  this 
state,  to  be  printed  and  ruled  so  as  to  show  upon  one  page: 

(1)  The  name,  place  of  residence,  and  date  of  death  of  the  decedent. 

(2)  Whether  the  decedent  died  testate,  or  intestate,  and  if  testate,  the 
record  and  page  where  the  will  was  probated  and  recorded. 

(3)  The    name    and    postoffice    address    of    the    executor,    administrator, 
trustee,  or  grantee,  with  date  of  appointment  or  transfer. 

(4)  The  names,  postoffice  addresses  and  relationship,  if  known,  of  all  the 
heirs,  devisees  and  grantees. 

(5)  The  appraised  valuation  of  the  personal  property. 

(6)  The  amount  of  inheritance  tax  due  upon  said  personal  property. 

(7)  A  record  of  payment  with  amount  and  date. 

(8)  Date  of  filing  objections  and  names  of  objectors. 

(9)  Blank  for  index  and  reference  to  all  proceedings,  and  for  memorandum 
entries  of  the  court  or  judge  in  relation  thereto. 

Upon  the  opposite  page  of  such  record  shall  be  printed: 

(1)  Keal  estate  derived  from (naming  decedent)  which 

is  subject  to  the  lien  prescribed  by  the  statute  for  inheritance  tax. 

(2)  A  full  and  accurate  description  of  such  real  estate,  by  forty-acre  or 
fractional  tracts,  or  by  lots,  or  other  complete  individual  description. 

(3)  The  appraised  valuation  as  reported  by  the  appraisers,  with  a  refer- 
ence to  the  record  of  their  report,  as  to  each  piece  of  such  real  estate. 

(4)  The  amount  of  inheritance  tax  due  upon  each  such  piece. 

(5)  A  record  of  payments,  with  dates  and  amounts. 

(6)  Date  of  filing  objections,  and  names  of  objectors. 

(7)  Blank  for  index  and  reference  and  to  all  proceedings,  and  for  memo- 
randum entries  of  court  or  judge  in  relation  thereto.     (Laws  1905,  p.  203.) 

§  1202.    Report  of  Executor — Entry  of  Real  Estate  in  Lien  Book. 

Sec.  20.  Upon  the  appointment  and  qualification  of  each  executor,  ad- 
ministrator and  testamentary  trustee,  the  clerk  issuing  the  letters  shall  at 
the  same  time  deliver  to  him  a  blank  form  upon  which  he  shall  be  required 
to  make  detailed  report  of  the  following  facts: 

(1)  Name  and  last  residence  of  the  decedent. 

(2)  Date  of  death. 

(3)  Whether  or  not  he  left  a  will. 

(4)  Name  and  postoffice  of  executor,  administrator  or  trustee. 

(5)  Name  and  postoffice  of  surviving  wife  or  husband,  if  any. 

(6)  If  testate,  name  and  postoffice  of  each  beneficiary  under  the  wilL 

(7)  Eelationship  of  each  beneficiary  to  the  testator. 

(8)  If  intestate,  name  and  postoffice  of  each  heir  at  law. 

(9)  Relationship  of  each  heir  at  law  to  the  decedent. 


UTAH  STATUTE.  713 

(10)  Inventory  of  all  real  estate  of  the  decedent,  giving  amount  and 
description  of  each  tract. 

Within  ten  days  after  his  qualification,  each  executor,  administrator  and 
testamentary  trustee  shall  make  and  return  to  the  clerk,  under  oath,  a  full 
and  detailed  report  as  indicated  in  the  preceding  paragraph,  any  will  to  the 
contrary  notwithstanding,  and  upon  his  failure  to  do  so,  the  clerk  shall  forth- 
with report  his  delinquency  to  the  district  court  if  in  session,  or  to  a  judge 
of  said  court  if  in  vacation,  for  such  order  as  may  be  necessary  to  enforce 
an  observance  of  this  section.  If  it  appears  from  the  inventory  or  report  so 
filed,  that  the  real  estate,  or  any  part  of  it,  is  subject  to  an  inheritance  tax, 
it  shall  be  the  duty  of  the  executor  or  administrator  to  cause  the  lien  of  the 
same  to  be  entered  upon  the  lien  book  in  the  office  of  the  clerk  of  the  court 
in  each  county  where  each  particular  tract  of  said  real  estate  is  situated, 
and  no  conveyance  of  said  real  estate  or  interest  therein,  which  is  subject 
to  such  tax  before  or  after  entering  of  said  lien,  shall  discharge  the  real 
estate  so  conveyed  from  the  operation  thereof,  and  no  final  settlement  of 
the  account  of  any  executor,  administrator  or  trustee  shall  be  accepted  or 
allowed  unless  a  strict  compliance  with  the  provisions  of  this  section  has 
been  had  by  such  person.  (Laws  1905,  p.  204.) 

§  1203.     Extension  of  Time  for  Appraisement. 

Sec.  21.  Whenever,  by  reason  of  the  complicated  nature  of  an  estate,  or 
by  reason  of  the  confused  condition  of  the  decedent's  affairs,  it  is  im- 
practicable for  the  executor,  administrator,  or  trustee  or  beneficiary  of  said 
estate  to  file  with  the  clerk  of  the  court  a  full,  complete  and  itemized  in- 
ventory of  the  personal  assets  belonging  to  the  estate,  within  the  time  re- 
quired by  statute  for  filing  inventories  of  the  estate,  the  court  may,  upon 
the  application  of  such  representatives  or  parties  in  interest,  extend  the 
time  for  the  making  of  the  inheritance  appraisement  for  a  period  not  to 
exceed  three  months  beyond  the  time  fixed  by  law.  (Laws  1905,  p.  205.) 

§  1204.    Entries  in  Tax  and  Lien  Books — Index. 

Sec.  22.  The  clerk  shall  from  time  to  time  enter  upon  the  inheritance  tax 
and  lien  book,  the  title  of  all  estates  subject  to  the  inheritance  tax,  as  shown 
by  the  inventories  or  lists  of  heirs  filed  in  his  office,  or  as  reported  to  him  by 
the  district  attorney  or  the  state  treasurer,  and  shall  enter  in  said  book  as 
against  each  estate  or  title  at  the  appropriate  place,  all  such  information 
relating  to  the  situation  and  condition  of  the  estate  as  he  may  be  able  to 
obtain  from  the  papers  filed  in  his  office,  or  from  the  district  attorney  or  the 
state  treasurer,  as  may  be  necessary  to  collection  and  enforcement  of  the 
tax.  He  shall  also  immediately  index  all  liens  entered  upon  the  inheritance 
tax  and  lien  book  in  the  book  kept  in  his  office  for  that  purpose.  (Laws 
1905,  p.  205.) 

§  1205.    Record  to  be  Kept  by  Clerk. 

Sec.  23.  In  all  cases  entered  upon  the  inheritance  tax  and  lien  book,  the 
clerk  shall  make  a  complete  record  in  the  proper  probate  record,  of  all  the 
proceedings,  orders,  reports,  inventories,  appraisements  and  all  other  matters 
and  proceedings  therein.  (Laws  1905,  p.  205.) 


714  INHERITANCE  TAXATION. 

§  1206.    Duty  of  Clerk  to  Make  Examinations  and  Investigations. 

Sec.  24.  It  shall  be  the  duty  of  each  clerk  of  the  district  court  to  make 
examination  from  time  to  time  of  all  reports  filed  with  him  by  administra- 
tors, executors  and  trustees,  pursuant  to  law;  also  to  make  examination  of 
all  foreign  wills  offered  for  probate  or  recorded  within  his  county,  as  well 
as  of  the  record  of  deeds  and  conveyances  in  the  recorder's  office  of  said 
county,  and  if  from  such  examination,  or  from  information  or  knowledge 
coming  to  him  from  any  other  source,  he  finds  or  believes  that  any  property 
within  his  county,  or  within  the  jurisdiction  of  the  district  court  of  said 
county,  has  since  May  14,  1901,  passed  by  will  or  by  the  intestate  laws  of 
this  or  any  other  state,  or  by  deed,  grant,  sale,  or  gift  made  or  intended  to 
take  effect,  in  possession  or  in  enjoyment  after  the  death  of  the  testator, 
donot  or  grantor,  to  any  person  within  this  state,  he  shall  make  report 
thereof  in  writing  to  the  state  treasurer,  embodying  in  such  report  the  name 
and  residence  of  the  decedent,  date  of  death,  name  and  address  of  ad- 
ministrator, executor  or  trustee;  the  description  of  any  property  liable  to  a 
tax  and  the  county  in  which  it  is  located,  and  name  and  relationship  of  all 
beneficiaries  or  heirs.  Any  citizen  of  the  state  having  knowledge  of  prop- 
erty liable  to  such  tax,  against  which  no  proceeding  for  enforcing  collection 
thereof  is  pending,  may  report  the  same  to  [the]  clerk,  and  it  shall  be  the 
duty  of  such  officer  to  investigate  the  case,  and  if  he  has  reason  to  believe 
the  information  to  be  true,  he  shall  forthwith  institute  such  proceedings 
substantially  as  above  indicated.  (Laws  1905,  p.  205.) 

§  1207.    Duties  of  Court  and  District  Attorney. 

Sec.  25.  On  the  first  or  second  day  of  each  regular  term,  the  court  shall 
require  the  clerk  to  present  for  its  inspection,  the  inheritance  tax  and  lien 
book  hereinbefore  provided  for,  together  with  all  reports  of  administrators, 
executors  and  trustees  which  have  been  filed  pursuant  to  this  chapter  since  the 
last  preceding  term.  The  district  attorney  shall  also  attend  and  make  report 
to  the  court  concerning  the  progress  of  all  cases  pending  for  the  collection 
of  such  taxes,  together  with  any  other  facts,  which,  in  his  judgment,  may  aid 
the  court  in  enforcing  the  general  observance  of  the  inheritance  tax  law.  If 
from  information  obtained  from  the  records  or  reports,  or  from  any  other  source, 
the  court  has  reason  to  believe  that  there  is  property  within  its  jurisdiction  li- 
able to  the  payment  of  an  inheritance  tax,  against  which  proceedings  for  collec- 
tion are  not  already  pending,  it  shall  enter  an  order  of  record,  directing  the 
district  attorney  to  institute  such  proceedings  forthwith.  Should  any  estate,  or 
the  name  of  any  grantee  or  grantees  be  placed  upon,  the  book  at  the  suggestion 
of  the  district  attorney  or  the  state  treasurer  in  which  the  papers  already  on 
file  in  the  clerk's  office  do  not  disclose  that  any  inheritance  tax  is  due  or  pay- 
able, the  district  attorney  shall  forthwith  give  to  all  parties  in  interest  such  no- 
tice as  the  court  or  judge  may  prescribe,  requiring  them  to  appear  on.  a  day  to 
be  fixed  by  the  said  court  or  judge,  and  show  cause  why  the  property  should 
not  be  appraised  and  subjected  to  said  tax.  If  upon  hearing  at  the  time 
so  fixed,  the  court  is  satisfied  that  any  property  of  the  decedent,  or  any 
property  devised,  granted  or  donated  by  Mm,  is  subject  to  the  tax,  the  same 


UTAH  STATUTE.  715 

proceedings  shall  be  had  as  in  other  cases,  so  far  as  applicable.     (Laws  1905, 
p.  206.) 

§  1208.    Costs  of  Proceedings. 

Sec.  26.  In  all  cases  where  any  property  so  passes  as  to  be  liable  to  tax- 
ation under  the  inheritance  law,  all  costs  of  the  proceedings  had  for  deter- 
mining the  amount  of  such  tax  or  for  determining  whether  the  property  of 
the  entire  estate  is  sufficient  in  amount  as  to  render  that  part  passing  to 
heirs  subject  to  the  tax,  shall  be  chargeable  to  such  estate,  and  to  discharge 
the  lien  upon  such  property  all  costs,  as  well  as  the  taxes  must  be  paid.  In  all 
other  cases  the  costs  are  to  be  paid  as  ordered  by  the  court,  and  when  a  de- 
cision adverse  to  the  state  has  been  rendered,  with  an  order  that  the  state 
pay  the  costs,  it  is  the  duty  of  the  clerk  of  the  court  in  which  such  action 
was  pending  to  certify  the  amount  of  such  costs  to  the  state  treasurer  who 
shall,  if  said  costs  be  correctly  certified,  and  the  case  has  been  finally  ter- 
minated, present  the  claim  to  the  state  board  of  examiners,  to  audit,  and, 
said  claim  being  allowed  by  said  board,  the  state  auditor  is  directed  to  is- 
sue a  warrant  on  the  state  treasurer  in  payment  of  such  costs.  (Laws  1905, 
p.  207.) 

§  1209.     Transfer  or  Delivery  of  Deposits  or  Assets — Notice. 

Sec.  27.  No  safe  deposit  company,  bank  or  other  institution,  person  or 
persons,  holding  securities  or  assets  of  the  decedent  shall  deliver  or  trans- 
fer the  same  to  the  executor  or  administrator  or  legal  representative  of  said 
decedent  unless  notice  of  the  time  and  place  of  such  intended  transfer  be 
served  upon  the  state  treasurer  at  least  five  days  prior  to  the  transfer  thereof, 
or  unless  the  tax  for  which  such  securities  or  assets  are  liable  under  this  act, 
shall  be  first  paid.  It  shall  be  lawful  for  and  the  duty  of,  the  state  treasurer 
to  personally,  or  by  any  person  by  him  duly  authorized,  to  examine  such 
securities  or  assets  at  the  time  of  such  delivery  or  transfer.  Failure  to 
serve  such  notice  upon  the  state  treasurer,  or  to  allow  such  examination  on 
the  delivery  of  such  securities  or  assets  to  such  executor,  administrator  or 
legal  representative  before  said  tax  is  paid  shall  render  such  safe  deposit  com- 
pany, trust  company,  bank  or  other  institution,  person  or  persons  liable  for  the 
payment  of  the  taxes  due  upon  such  securities  or  assets  as  provided  in  this  act. 
(Laws  1905,  p.  207.) 

§  1210.     Foreign  Estates — Assessment  of  Tax. 

Sec.  28.  Whenever  any  property  belonging  to  a  foreign  estate,  which  es- 
tate, in  whole  or  in  part,  is  liable  to  pay  an  inheritance  tax  in  this  state,  the 
said  tax  shall  be  assessed  upon  the  market  value  of  said  property  remain- 
ing after  the  payment  of  such  debts  and  expenses  as  are  chargeable  to  the 
property  under  the  laws  of  this  state;  in  the  event  that  the  executor,  ad- 
ministrator or  trustee  of  such  foreign  estate  files  with  the  clerk  of  the  court 
having  ancillary  jurisdiction,  and  with  the  state  treasurer,  duly  certified 
statements  exhibiting  the  true  market  value  of  the  entire  estate  of  the  de- 
cedent owner,  and  the  indebtedness  for  which  the  said  estate  has  been  ad- 
judged liable,  which  statements  shall  be  duly  attested  by  the  judge  of  the 


716  INHERITANCE  TAXATION. 

court  having  original  jurisdiction,  the  beneficiaries  of  said  estate  shall  then 
be  entitled  to  have  deducted  such  proportion  of  the  said  indebtedness  of  the 
decedent  from  the  value  of  the  property  as  the  value  of  the  property  within 
this  state  bears  to  the  value  of  the  entire  estate.  (Laws  1905,  p.  207.) 

§  1211.    Foreign  Estates — Assessment  and  Payment  of  Tax. 

Sec.  29.  Whenever  any  property,  real  or  personal,  within  this  state,  be- 
longs to  a  foreign  estate,  said  foreign  estate  passes  in  part  exempt  from  the 
inheritance  tax,  and  in  part  subject  to  said  inheritance  tax,  and  it  is  within 
the  authority  .or  discretion  of  the  foreign  executor,  administrator  or  trustee 
administering  the  estate  to  dispose  of  the  property  not  specifically  devised 
to  direct  heirs  or  devisees  in  the  payment  of  the  debts  owing  by  the  dece- 
dent at  the  time  of  his  death,  or  in  the  satisfaction  of  legacies  or  devises  or 
trusts  given  to,  direct  and  collateral  legatees  or  devisees,  or  in  payment  of 
the  distributive  shares  of  any  direct  and  collateral  heirs,  then  the  property 
within  the  jurisdiction  of  the  state,  belonging  to  such  foreign  estate,  shall 
be  subject  to  the  inheritance  tax  imposed  by  this  act,  and  the  tax  due  thereon 
shall  be  assessed  as  provided  in  the  next  preceding  section  of  this  act,  and  with 
the  same  proviso  respecting  the  deduction  of  the  proportionate  share  of  the 
indebtedness,  as  therein  provided.  (Laws  1905,  p.  208.) 

§  1212.     Transfer  of  Corporate  Stock  by  Foreign  Executor. 

Sec.  3t).  If  a  foreign  executor,  administrator,  or  trustee  shall  assign  or 
transfer  any  corporate  stock  or  obligations  in  this  state  standing  in  the 
name  of  a  decedent,  or  in  trust  for  a  decedent,  liable  to  such  tax,  the  tax 
shall  be  paid  to  the  state  treasurer  on  or  before  the  transfer  thereof; 
otherwise  the  corporation  permitting  its  stock  to  be  so  transferred  shall  be 
liable  to  pay  such  tax  and  it  is  the  duty  of  the  state  treasurer  to  enforce  the 
payment  thereof.  (Laws  1905,  p.  208.) 

§  1213.     Compromise  by  State  Treasurer. 

Sec.  31.  Whenever  an  estate  charged,  or  sought  to  be  charged,  with  the 
inheritance  tax,  is  of  such  a  nature,  or  is  so  disposed,  that  the  liability  of  the 
estate  is  doubtful,  or  the  value  thereof  cannot,  with  reasonable  certainty, 
be  ascertained  under  the  provisions  of  law,  the  state  treasurer  may,  with 
the  approval  of  the  attorney  general,  which  approval  shall  set  forth  the 
reasons  therefor,  compromise  with  the  beneficiaries  or  representatives  of 
such  estates,  and  compound  the  tax  thereon;  but  said  settlement  must  be 
approved  by  the  district  court  or  judge  of  the  proper  court,  and  after  such 
approval,  the  payment  of  the  amount  of  the  taxes  so  agreed  upon  shall  dis- 
charge the  lien  against  the  property  of  the  estate.  (La.ws  1905,  p.  208.) 

§  1214.    Application  of  Statute  to  Pending  Estates. 

Sec.  32.  This  act  shall  apply  to  all  pending  estates  which  are  not  closed, 
and  the  property  subjected  by  this  act  to  the  said  tax  is  liable  to  the  pro- 
visions incorporated  in  this  act.  (Laws  1905,  p.  208.) 


UTAH  STATUTE.  717 

§  1215.    Repeal  of  Prior  Statutes. 

Sec.  33.    -Chapter  62,  Laws  of  Utah,  1901,  and  chapter  93,  Laws  of  Utah, 
1903,  are  hereby  repealed.     (Laws  1905,  p.  209.) 

§  1216.    Time  When  Statute  Takes  Effect. 

Sec.  34.     This   act   shall   take   effect   upon    approval.     Approved   this  17th 
day  of  March,  1905.     (Laws  1905,  p.  209.) 


718  INHERITANCE  TAXATION. 

CHAPTEiB  LV. 
VERMONT  STATUTE. 

(Public  Statutes  of  1906,  pp.  S40-256 ;  Laws  of  1908,  pp.  S7-X9;  Laws  of  1910, 

pp.  57-59.) 

§  1217.  Definitions  of  Terms. 

§  1218.  Transfers  Subject  to  Tax — Kates. 

§  1219.  Transfers  Intended  to  Take  Effect  at  Death. 

§  1220.  Effect  of  Payment  of  Tax  to  Another  State. 

§  1221.  Eebate  in  Case  of  Payment  of  Tax  to  Another  State. 

§  1222.  Exemption  of  Gifts  for  Burial  Lots. 

§  1223.  Collection  of  Tax  by  Executor. 

5  1224.  Sale  of  Property  to  Pay  Tax. 

§  1225.  Property  not  Delivered  Until  Tax  Paid— Lien  of  Tax. 

§  1226.  Failure  of  Executor  to  Collect  Tax. 

§  1227.  Legacy  Charged  upon  Eeal  or  Personal  Estate. 

§  1228.  Account  of  Executor  not  Allowed  Until  Tax  Paid. 

§  1229.  Jurisdiction  of  Probate  Court. 

§  1230.  Appeals  to  County  Court. 

§  1231.  Certifying  Case  to  Supreme  Court. 

§  1232.  Hearing  in  Supreme  Court. 

§  1233.  Costs  of  Proceedings. 

§  1234.  Determination  of  Value  of  Property  and  Amount  of  Taxes. 

§  1235.  Eeport  by  Probate  Court  to  Commissioner  of  Taxes. 

§  1236.  Value  of  Legacy  or  Distributive  Share. 

§  1237.  Value  of  Gift  to  Take  Effect  at  Death. 

§  1238.  Appointment  of  Appraisers. 

§  1239.  Warrant  to  Appraisers. 

§  1240.  Oath  of  Appraisers — Notice  to  Parties. 

§  1241.  Authority  of  Appraisers  as  to  Witnesses. 

§  1242.  Findings  and  Reports  of  Appraisers. 

§  1243.  Fees  of  Appraisers. 

§  1244.  Agreement  by  Commissioner  of  Taxes  With  Executor  as  to  Valu- 
ation. 

5  1245.  Expiration  of  Such  Agreement  in  Writing. 

§  1246.  Filing  of  Agreement  With  Various  Officers. 

§  1247.  Affirmance  or  Setting  Aside  of  Agreement. 

§  1248.  Effect  of  Setting  Aside  Agreement. 

§  1249.  Determination  of  Value  of    Life  or  Contingent  Estate. 

§  1250.  Determination  of  Value  of  Annuities,  etc. 

§  1251.  Valuation  of  Yearly  Income. 

§  1252.  Mortality  and  Discount  Tables. 

5  1253.  Estates  for  Life  or  for  Years  and  Remainders. 
§  1254.  Bequest  to  Executor  in  Lieu  of  Compensation. 

6  1255.  Receipts  to  be  Issued  by  State  Treasurer. 


VERMONT  STATUTE.  .  719 

§  1256.  Rebate  in  Case  of  Excessive  Payment. 

§  1257.  Time  for  Payment  of  Tax. 

§  1258-  Payment  of  Tax  on  Delivery  of  Distributive  Share. 

§  1259.  Extension  of  Time  in  Certain  Cases. 

§   1260.  Extension  of  Time  Where  Value  not  Determinable. 

§  1261.  Records  to  be  Kept  of  Extension  of  Time. 

§  1262.  Time  for  Payment  of  Tax. 

§  1263.  Inventory  of  Property. 

§  1264.  Failure  to  File  Inventory. 

§  1265.  Interest  on  Taxes. 

§  1266.  Reportk  to  be  Made  by  Register  of  Probate. 

§  1267.  Report  to  be  Made  by  Register  of  Probate  to  Commissioner  of 

Taxes. 

§  1268.  Application  by  Tax  Commissioner  for  Administration. 

§  1269.  Notice  to  Commissioner  of  Taxes  of  Taxable  Transfers. 

§  1270.  Copies  of  Papers  and  Records. 

§  1271.  Refusal  of  Officer  to  Furnish  Copies. 

§  1272.  Transfers  of  Stock  or  Obligations  by  Foreign  Executor. 

§  1273.  Penalty  for  Recording  Transfer  of  Stock  Without  Payment  of  Tax. 

§  1274.  Transfer  or  Receipts  of  Securities  or  Assets  by  Foreign  Executor 

or  Legatee. 

§  1275.  Transfer  to  Foreign  Executor  not  Made  Until  Taxes  Paid. 

§  1276.  Failure  to  Mail  or  Deliver  Notice. 

§  1277.  Payment  of  Bank  Deposit. 

§  1278.  Certificate  of  Nonliability  by  Tax  Commissioner. 

§  1279.  Notice  by  Bank  to  Tax  Commissioner. 

§  1280.  Bank  not  to  Pay  Deposit  Without  Consent  of  Tax  Commissioner. 

§  1281.  Failure  of  Bank  or  Trust  Company  to  Obey  Law — Penalty. 

9  1282.  Petition  by  Tax  Commissioner  to  Determine  Amount  of  Tax  Due. 

§  1283.  Service  of  Petition. 

§  1284.  Hearing  in  Court  of  Chancery. 

§  1285.  Appellate  Proceedings. 

§  1286.  Proceedings  Installed  by  Tax  Commissioner  in  Probate  Court. 

§  1287.  Jurisdiction  of  Court  in  Such  Proceedings. 

§  1288.  Issuance  of  Letters  of  Administration. 

§  1289.  Jurisdiction  of  Court  After  Issuance  of  Letters. 

§  1290.  Production  of  Books  of  Accounts,  Records,  etc. 

§  1291.  Power  of  Probate  Court  to  Issue  Summons  or  Citation. 

§  1292.  Compensation  of  Witnesses. 

§  1293.  Penalty  for  Refusal  to  Appear  or  Testify  Before  Probate  Court. 

§  1294.  Reports  of  Listers. 

§  1295.  False  Returns  or  Report — Perjury. 

§  1296.  Time  When  Statute  Takes  Effect. 

§  1297.  Liabilities  Already  Accrued  Under  Previous  Statutes. 

§  1217.  Definitions  of  Terms. 

Sec.  821.     "Legatee,"  "share,"   etc.    The  word   "legatee,"  when   used   in 
this  chapter,  shall  extend  to  and  include  any  devisee  or  distributee  named 


720  INHERITANCE  TAXATION. 

in  a  will;  the  word  "legacy,"  all  devises  and  bequests;  and  the  words 
"share"  or  "distributive  share,"  all  real  or  personal  property  or  any  in- 
terest therein  passing  under  the  laws  of  descent  or  the  intestate  laws  of  this 
state,  or  any  other  state  or  government;  provided  that  such  construction  shall 
not  be  required,  if  the  same  would  thereby  be  repugnant  to  the  manifest 
intention  of  the  general  assembly.  (Pub.  Stats.  1906,  p.  241.) 

§  1218.     Transfers  Subject  to  Tax — Rates. 

Sec.  822.  Every  person  other  than  the  father,  mother,  husband,  wife, 
lineal  descendant,  the  wife  or  widow  of  a  son,  the  husband  of  a  daughter, 
a  stepchild,  a  child  adopted  as  such  during  his  minority  in  conformity  with 
the  laws  of  this  state,  a  child  of  a  stepchild  or  of  such  adopted  child,  a 
bishop  in  his  ecclesiastical  capacity  for  religious  uses  within  this  state,  or 
a  city  or  town  for  cemetery  purposes;  and  every  charitable,  educational 
or  religious  society  or  institution  other  than  one  created  and  existing  under 
and  by  virtue  of  the  laws  of  this  state  and  having  its  principal  office  herein, 
that  shall  receive  in  trust  or  otherwise  a  legacy  or  distributive  share  con- 
sisting of  or  arising  from  property  or  an  interest  therein  passing  by  will, 
the  law  of  descent  or  the  decree  of  a  court  in  this  state,  from  a  deceased 
person  who  owned  such  property  at  the  date  of  his  decease,  shall,  except 
as  otherwise  provided  in  this  chapter,  pay  to  the  state  a  tax  of  five  per  cent 
of  the  value  in  money  of  such  legacy  or  distributive  share.  (Pub.  Stats. 
1906,  p.  241;  Laws  1908,  p.  27;  Laws  1910,  p.  57.) 

§  1219.     Transfers  Intended  to  Take  Effect  at  Death. 

Sec.  823.  Every  person,  unless  one  of  a  class  exempted  in  the  preceding 
section,  who  acquires  title  to  real  or  personal  estate  or  any  interest  therein 
by  voluntary  conveyance  or  gift  mad«  or  intended  to  take  effect  in  posses- 
sion or  enjoyment  upon  or  after  the  death  of  the  grantor  or  donor,  shall 
pay  to  the  state  a  tax  of  five  per  cent  of  the  value  in  money  of  such  real 
or  personal  estate,  or  the  interest  therein  conveyed.  Such  tax  shall  be  a 
first  lien  on  the  real  or  personal  estate  thus  conveyed  or  given,  until  such 
tax  is  paid  in  full.  (Pub.  Stats.  1906,  p.  241.) 

§  1220.    Effect  of  Payment  of  Tax  to  Another  State. 

Sec.  824.  If  a  transfer  or  other  similar  tax  has  been  lawfully  paid  to 
another  state  or  to  a  government  other  than  the  United  States,  for  or  on 
account  of  an  assignment  or  transfer  of  stocks,  obligations,  securities  or 
other  evidences  of  indebtedness,  or  for  or  on  account  of  the  collection,  de- 
livery or  assignment  of  securities,  deposits  or  other  assets,  and  such  stocks, 
obligations,  securities,  other  evidences  of  indebtedness,  deposits  or  assets, 
or  the  proceeds  thereof,  shall  in  whole  or  in  part  be  included  in  any  legacy 
or  distributive  share  decreed  subsequent  to  the  ninth  day  of  December, 
1904,  by  a  probate  court  of  this  state  to  a  legatee  or  heir  liable  to  the  tax 
imposed  by  section  eight  hundred  twenty-two,  such  legatee  or  heir  shall  be 
liable  to  pay  to  this  state  under  the  provisions  of  said  section  only  such 
part  of  the  tax  therein  imposed  as  will  make  the  entire  tax  both  within 
and  without  this  state,  based  on  such  portion  of  a  legacy  or  distributive 


VERMONT  STATUTE.  721 

share  taxed  in  such  other  state  or  government,  equal  to  five  per  cent  of  the 
total  value  thereof,  to  be  determined  as  provided  in  this  chapter^  (Pub. 
Stats.  1906,  p.  242;  Laws  1908,  p.  28.) 

§  1221.    Rebate  in  Case  of  Payment  of  Tax  to  Another  State. 

Sec.  825.  No  rebate  from  the  full  amount  of  the  tax  required  by  the 
third  preceding  section  shall  be  allowed  by  the  probate  court  under  the 
provisions  of  the  preceding  section,  unless  an  official  receipt  or  other  compe- 
tent evidence,  showing  the  amount  so  paid  to  such  other  state  or  govern- 
ment, the  date  of  payment,  the  rate,  the  valuation  of  the  property  upon 
which  such  tax  was  computed  and  a  brief  description  thereof,  is  presented 
to  the  probate  court.  (Pub.  Stats.  1906,  p.  242.) 

§  1222.    Exemption  of  Gifts  for  Burial  Lots. 

Sec.  826.  Towns,  cities,  villages,  trustees,  officials  therein  and  official 
boards,  corporations,  associations  and  persons  that  receive  a  legacy  in  trust 
or  otherwise,  the  use,  income  or  principal  sum  of  which  is  to  be  used  for  the 
sole  purpose  of  purchasing,  maintaining,  caring  for  or  beautifying  a  burial 
lot  owned  by  the  decedent,  or  wherein  he  or  any  of  his  kin  shall  be  interred, 
or  for  the  sole  purpose  of  erecting,  caring  for  or  maintaining  a  monument 
or  other  structure  thereon,  shall  be  exempt  from  the  payment  of  taxes 
imposed  by  this  chapter.  (Pub.  Stats.  1906,  p.  242.) 

§  1223.    Collection  of  Tax  by  Executor. 

Sec.  827.  An  administrator,  executor  or  trustee  having  in  charge  or  in 
trust  a  legacy  or  distributive  share  passing  to  a  legatee  or  heir  liable  to  a 
tax  imposed  by  this  chapter,  shall,  before  paying  or  delivering  the  same 
to  such  legatee  or  heir,  deduct  the  tax  therefrom  or  collect  it  from  such 
legatee  or  heir.  (Pub.  Stats.  1906,  p.  242.) 

§  1224.     Sale  of  Property  to  Pay  Tax. 

Sec.  828.  In  case  the  tax  cannot  be  deducted  therefrom  and  the  legatee 
or  heir  neglects  or  refuses  to  pay  such  tax,  the  probate  court  may,  in  the 
same  manner  as  administrators  and  executors  are  licensed  to  sell  real  and 
personal  estate  for  the  payment  of  debts,  license  such  administrator,  ex- 
ecutor or  trustee  to  sell  a  part  or  all  of  a  legacy  or  distributive  share  be- 
longing to  a  person  liable  to  a  tax  imposed  by  this  chapter,  for  the  payment 
of  such  tax.  (Pub.  Stats.  1906,  p.  242.) 

§  1225.    Property  not  Delivered  Until  Tax  Paid — Lien  of  Tax, 

Sec.  829.  An  administrator,  executor  or  trustee  shall  not  deliver  any 
specific  legacy,  property  or  the  proceeds  thereof  to  any  legatee  or  heir 
liable  to  such  tax,  until  such  tax  has  been  deducted  or  collected  as  afore- 
said. Conveyances,  mortgages,  attachments,  sales  or  assignments  of  such 
legacy,  share,  the  proceeds  thereof,  or  any  interest  therein,  shall  be  subject 
to  the  taxes  imposed  by  this  chapter;  and  such  taxes  shall  be  a  lien  on 
such  legacies,  distributive  shares  and  the  proceeds  thereof,  until  the  same 
are  fully  paid.  (Pub.  Stats.  1906,  p.  243.) 
46 


722  INHERITANCE   TAXATION. 

§  1226.     Failure  of  Executor  to  Collect  Tax. 

Sec.  830.  A  person  having  in  charge  or  in  trust  as  administrator,  ex- 
ecutor or  trustee,  a  legacy  or  distributive  share  passing  to  a  person  in  the 
manner  mentioned  in  section  eight  hundred  and  twenty-two,  shall  be  liable 
for  the  taxes  imposed  by  this  chapter,  with  interest  as  hereinafter' provided, 
until  the  same  are  fully  paid.  The  administrator,  executor  or  trustee  shall 
collect  the  tax  due  the  state  from  a  person  to  whom  real  estate  passes  in 
the  manner  mentioned  in  such  section  from  the  decedent  of  whose  estate  he 
is  administrator,  executor  or  trustee;  but  if  such  administrator,  executor 
or  trustee  is  unable  to  collect  such  tax  before  his  final  account  is  allowed, 
he  shall  make  a  full  and  detailed  report  to  the  commissioner  of  state 
taxes,  showing  the  names  of  the  persons  liable  to  such  unpaid  tax  and  a 
description  of  the  real  estate  on  account  of  which  such  tax  is  due.  (Pub. 
Stats.  1906,  p.  243.) 

§  1227.    Legacy  Charged  upon  Real  or  Personal  Estate. 

Sec.  831.  When  a  legacy  passing  to  a  legatee  liable  to  such  tax  is  charged 
upon  or  payable  out  of  any  real  or  personal  .estate  devised  to  any  person, 
said  person  shall,  before  paying  such  legacy,  deduct  such  tax  therefrom 
and  pay  it  to  the  administrator,  executor  or  trustee  of  the  estate  of  which 
such  real  and  personal  estate  is  a  part.  Such  tax  shall  be  a  lien  upon  such 
real  or  personal  estate,  until  the  said  tax  is  paid.  Payment  thereof  may  be 
enforced  by  the  administrator,  executor  or  trustee  in  the  manner  provided 
in  the  third  preceding  section.  (Pub.  Stats.  1906,  p.  243.) 

§  1228.     Account  of  Executor  not  Allowed  Until  Tax  Paid. 

Sec.  832.  A  final  settlement  of  the  account  of  an  administrator,  executor 
or  trustee  shall  not  be  allowed  by  a  probate  court,  unless  such  account  shall 
show  and  said  court  shall  find  that  the  taxes  imposed  by  the  provisions 
of  this  chapter  are  paid  and  that  one  of  the  triplicate  receipts  issued  by 
the  state  treasurer  therefor  is  filed  in  said  probate  court.  (Pub.  Stats.  1906, 
p.  243.) 

§  1229.    Jurisdiction  of  Probate  Court. 

See.  833.  The  probate  court  having  either  principal  or  ancillary  juris- 
diction of  the  settlement  of  the  estate  of  a  decedent  shall,  except  as  other- 
wise provided  in  this  chapter,  hear  and  determine  all  questions  relating 
to  the  taxes  imposed  by  this  chapter  and  the  value  of  all  legacies  and  dis- 
tributive shares  upon  which  such  taxes  are  computed.  (Pub.  Stats.  1906, 
p.  243.) 

§  1230.     Appeals  to  County  Court. 

Sec.  834.  A  legatee,  heir  or  beneficiary  affected  by  a  decree  of  the 
probate  court  respecting  the  taxes  imposed  by  this  chapter,  the  adminis- 
trator, executor  or  trustee  of  an  estate  of  which  a  legacy  or  distributive 
share  passing  to  a  person  liable  to  the  taxes  imposed  is  a  part,  and  the 
commissioner  of  state  taxes  in  behalf  of  the  state,  may  appeal  to  the  county 


VERMONT  STATUTE.  723 

court  from  such  orders  and  decrees  of  said  probate  court.     (Pub.   Stats. 
1906,  p.  244.) 

§  1231.    Certifying  Case  to  Supreme  Court. 

Sec.  835.  Whenever  the  legal  construction  of  a  part  of  this  chapter  is  in 
dispute  and  the  facts  relating  thereto  hav«  been  determined  by  the  probate 
court  wherein  the  estate  is  being  administered,  the  judge  of  such  court 
shall,  if  no  appeal  is  taken,  upon  the  written  application  of  the  adminis- 
trator, executor  or  trustee  of  such  estate  and  the  commissioner  of  state 
taxes,  filed  therein  before  the  time  for  an  appeal  has  expired,  certify  to 
the  supreme  court  such  part  of  its  finding  and  decree  as  relates  to  such 
construction,  together  with  the  contentions  of  the  parties  relating  thereto, 
which  shall  be  filed  with  such  application.  (Pub.  Stats.  1906,  p.  244.) 

§  1232.    Hearing  in  Supreme  Court. 

Sec.  836.  Such  certificate  shall  be  placed  on  file  in  the  office  of  the 
clerk  of  the  county  wherein  such  probate  district  is  located,  on  or  before 
twenty-five  days  from  the  date  of  such  finding  or  decree;  and  thereupon 
the  supreme  court  shall  have  jurisdiction  of  all  questions  of  law  presented 
thereby;  and  the  same  shall  be  heard  and  determined,  as  if  the  cause  had 
been  passed  to  said  court  upon  the  pro  forma  judgment  of  a  county  court 
to  which  said  cause  might  have  been  appealed.  The  final  decision  and 
judgment  therein  shall  be  certified  to  the  probate  court  in  the  same  manner 
and  with  the  same  legal  effect  as  provided  in  section  two  thousand  nine 
hundred  and  eighty-eight.  (Pub.  Stats.  1906,  p.  244.) 

§  1233.     Costs  of  Proceedings. 

Sec.  837.  In  proceedings  therein,  involving  questions  of  taxation  under 
the  provisions  of  this  chapter,  the  county  or  supreme  court  shall,  upon 
final  hearing,  make  such  orders  respecting  the  payment  of  costs  as,  in  the 
opinion  of  said  court,  are  just  and  equitable.  The  auditor  of  accounts 
shall  draw  an  order  for  the  costs  to  be  paid  by  the  state,  upon  receipt  of 
a  bill  thereof  signed  by  the  person  taxing  the  same.  (Pub.  Stats.  1906, 
p.  244.) 

§  1234.     Determination  of  Value  of  Property  and  Amount  of  Taxes. 

Sec.  838.  The  probate  court  having  jurisdiction  of  an  estate  may,  at 
any  time,  or  upon  the  application  of  the  commissioner  of  state  taxes  or  a 
legatee,  heir,  administrator,  executor  or  trustee  of  such  estate,  determine, 
so  far  as  possible,  the  value  of  all  legacies  and  distributive  shares  passing 
to  persons  who  are  liable  to  the  tax  imposed  by  this  chapter,  and  the 
amount  of  taxes  due  therefrom.  Notice  of  such  application  and  of  the 
time  and  place  of  the  hearing  shall  be  given  in  the  same  manner  as  in  case 
of  the  settlement  of  accounts  by  administrators  and  executors.  (Pub.  Stats. 
1906,  p.  244.) 

§  1235.    Report  by  Probate  Court  to  Commissioner  of  Taxes. 

Sec.  839.  Said  probate  court  shall  notify  the  commissioner  of  state  taxes 
in  writing,  upon  blanks  to  be  furnished  by  him  for  that  purpose,  of  it- 


724  INHERITANCE  TAXATION. 

findings  and  decrees  respecting  the  matter  specified  in  the  preceding  section, 
and  the  date  on  which  such  decree  was  made.     (Pub.  Stats.  1906,  p.  245.) 

§  1236.    Value  of  Legacy  or  Distributive  Share. 

Sec.  840.  The  value  of  a  legacy  or  distributive  share  mentioned  in  sec- 
tion eight  hundred  and  twenty-two,  except  as  otherwise  provided  in  this 
chapter,  shall  be  its  actual  market  value  in  money  at  the  expiration  of 
one  year  from  the  death  of  the  decedent;  but  if  such  legacy  or  share  is 
sooner  paid  or  delivered,  the  valuation  thereof  shall  be  determined  as  of 
the  date  at  which  the  person  entitled  to  the  same  comes  into  or  is  entitled 
to  the  possession  or  the  beneficial  use  thereof.  (Pub.  Stats.  1906,  p.  245.) 

§  1237.    Value  of  Gift  to  Take  Effect  at  Death. 

Sec.  841.  The  value  of  property  passing  by  voluntary  conveyance  or  gift 
mentioned  in  section  eight  hundred  and  twenty-three,  except  as  otherwise 
provided  in  this  chapter,  shall  be  its  market  value  in  money  at  the  date  the 
person  entitled  to  the  same  comes  into  or  is  entitled  to  the  possession  or 
the  beneficial  use  thereof.  (Pub.  Stats.  1906,  p.  245.) 

§  1238.     Appointment  of  Appraisers. 

Sec.  842.  Upon  the  written  application  signed  by  the  commissioner  of 
state  taxes,  or  by  a  legatee  or  heir  liable  to  a  tax  001  account  of  a  legacy 
or  distributive  share  passing  to  him  in  the  manner  designated  in  section 
eight  hundred  and  twenty-two,  or  by  the  administrator,  executor  or  trustee 
of  an  estate  of  which  such  legacy  or  share  is  a  part,  or  by  the  grantee 
or  donee  of  property  passing  in  the  manner  designated  in  section  eight 
hundred  and  twenty-three,  the  probate  court  wherein  such  estate  is  being 
administered  or  for  the  district  where  a  part  of  the  property  passing  in  the 
manner  designated  in  section  eight  hundred  and  twenty-three  is  situated. 
if  no  letters  of  administration  have  been  granted  upon  the  estate  of  the 
grantor  or  donor  therein  mentioned,  or  for  any  district  wherein  a  corpora- 
tion mentioned  in  section  eight  hundred  and  seventy-six,  or  a  savings  bank 
or  trust  company  or  any  corporation  having  securities  or  assets  mentioned 
in  section  eight  hundred  and  seventy-eight  has  its  principal  place  of  busi- 
ness in  this  state,  or  within  which  a  person  holding  such  assets  or  securi- 
ties resides,  may,  in  its  discretion,  appoint  not  more  than  three  disinterested 
persons,  to  determine,  upon  hearing  or  otherwise,  the  value  of  all  or  a  part 
of  the  real  estate  or  personal  property,  or  of  an  interest  therein,  passing 
to  a  person  liable  to  a  tax  imposed  by  this  chapter.  (Pub.  Stats.  1906,  p. 
245.) 

§  1239.    Warrant  to  Appraisers. 

Sec.  843.  Said  probate  court  shall  issue  a  warrant  to  said  appraisers  and 
shall  therein  designate  what  part  of  such  real  ami  personal  property,  or  in- 
terest therein,  shall  be  appraised  by  them,  and  shall  therein  fix  the  time 
within  which  such  warrant  shall  be  returnable  to  said  court.  (Pub.  Stats. 
1906,  p.  245.) 


VERMONT  STATUTE.  725 

§  1240.    Oath  of  Appraisers— Notice  to  Parties. 

Sec.  844.  Said  appraisers  shall,  before  entering  upon  the  performance 
of  their  duties,  be  duly  sworn  and  shall  give  such  notice  to  the  parties 
as  said  probate  court  orders.  (Pub.  Stats.  1906,  p.  246.) 

§  1241.    Authority  of  Appraisers  as  to  Witnesses. 

Sec.  845.  An  appraiser  shall  have  the  same  authority  to  compel  the  at- 
tendance of  witnesses,  and  to  administer  oaths  thereto,  that  judges  of 
probate  have.  (Pub.  Stats.  1906,  p.  246.) 

§  1242.     Findings  and  Reports  of  Appraisers. 

Sec.  846.  Said  appraisers  shall  make  returns  of  their  findings  to  the 
probate  court  within  the  time  mentioned  in  such  warrant;  and  said  probate 
court  may,  in  its  discretion,  accept  or  reject  a  part  ox  all  of  such  findings. 
If  such  report  is  rejected,  the  probate  court  may  appoint  new  appraisers 
to  determine  such  valuation,  or  it  may  determine  such  valuation  upon 
hearing.  (Pub.  Stats.  1906,  p.  246.)  % 

§  1243.    Fees  of  Appraisers. 

Sec.  847.  The  fees  of  said  appraisers  shall  be  fixed  by  the  probate  court 
and  shall  be  paid  by  the  administrator,  executor  or  trustee  of  the  estate, 
if  the  property  so  appraised  is  a  part  or  all  of  an  estate  in  which  letters 
of  administration  have  been  granted  within  this  state.  In  case  no  letters 
of  administration  have  been  granted,  the  fees  of  said  appraisers,  when  fixed 
as  aforesaid,  shall  be  paid  by  an  order  drawn  by  the  auditor  of  accounts. 
(Pub.  Stats.  1906,  p.  246.) 

§  1244.    Agreement  by  Commissioner  of  Taxes  With  Executor  as  to  Valua- 
tion, 

Sec.  848.  Whenever  it  is  necessary  under  the  provisions  of  this  chapter 
to  establish  the  value  of  property  or  an  interest  therein,  the  commissioner 
of  state  taxes  may  agree  upon  such  valuation  with  the  administrator,  ex- 
ecutor or  trustee  of  an  estate  of  which  such  property  is  a  part.  This 
section  shall  apply  to  any  agreement  made  with  a  foreign  administrator, 
executor  or  trustee.  (Pub.  Stats.  1906,  p.  246.) 

» 
§  1245.    Expiration  of  Such  Agreement  in  Writing. 

Sec.  849.  In  cases  where  the  valuation  of  a  part  or  all  of  the  property 
mentioned  in  the  preceding  section  or  of  any  interest  therein  has  been 
established  by  agreement  pursuant  to  the  preceding  section,  the  commis- 
sioner of  state  taxes  and  said  administrator,  executor  or  trustee  shall  cause 
such  agreement  to  be  written,  and  specify  therein  the  various  items  of 
property  and  the  value  of  each  item.  (Pub.  Stats.  1906,  p.  246.) 

§  1246.    Filing  of  Agreement  With  Various  Officers. 

Sec.  850.  One  copy  of  the  agreement  specified  in  the  preceding  section 
shall  be  filed  in  the  office  of  the  commissioner  of  state  taxes,  one  with  the 
state  treasurer,  and  one  in  the  probate  court,  if  any,  having  jurisdiction 


726  INHERITANCE   TAXATION. 

of  such  estate  within  this  state.  In  case  a  foreign  administrator,  executor 
or  trustee  is  a  party  to  such  agreement,  one  copy  thereof  shall  be  delivered 
to  him.  (Pub.  Stats.  1906,  p.  246.) 

§  1247.    Affirmance  or  Setting  Aside  of  Agreement. 

Sec.  851.  The  probate  court  shall  have  power  to  affirm  or  set  aside  the 
agreement  mentioned  in  the  three  preceding  sections,  in  all  estates  within 
its  jurisdiction;  and  the  state  treasurer  may,  in  his  discretion,  set  aside  any 
such  agreed  statement  of  valuation  to  which  a  foreign  administrator,  ex- 
ecutor or  trustee  is  a  party,  if  he  is  satisfied  that  the  interests  of  the  state 
so  require.  (Pub.  Stats.  1906,  p.  246.) 

§  1248.     Effect  of  Setting  Aside  Agreement. 

Sec.  852.  If  the  agreed  statement  of  valuation  hereinbefore  mentioned 
is  set  aside  for  any  cause,  the  value  of  such  property  shall  be  determined 
as  hereinbefore  otherwise  provided.  (Pub.  Stats.  1906,  p.  247.) 

§  1249.    Determination  of  Value  of  Life  or  Contingent  Estate. 

Sec.  853.  When  it  becomes  necessary  for  the  purpose  of  computing  a  tax 
imposed  by  this  chapter  to  determine  the  value  at  the  time  such  tax  ac- 
crues of  an  interest  in  property  arising  from  the  bequest  or  devise  of  the 
use  or  income  thereof  for  the  term  of  an  individual  life  or  lives,  or  involv- 
ing the  contingency  of  the  duration  of  such  life  or  lives,  it  shall  be  de- 
termined according  to  the  "American  Experience  Table  of  Mortality,"  with 
interest  at  the  rate  of  three  and  one-half  per  cent  per  annum.  (Pub.  Stats. 
1906,  p.  247.) 

§  1250.    Determination  of  Value  of  Annuities,  etc. 

Sec.  854.  When  it  becomes  necessary  for  the  purpose  of  computing  a 
tax  imposed  by  this  chapter  to  determine  the  value  at  the  time  such  tax 
accrues  of  an  annuity  or  an  interest  in  property  arising  from  the  bequest 
or  devise  of  the  use  or  income  thereof  for  a  term  of  years  or  for  a  period 
in  which  the  life  duration  or  life  contingency  is  not  involved,  the  value 
shall  be  determined  by  discount  tables  computed  at  the  rate  of  three  and 
one-half  per  cent  per  annum.  (Pub.  Stats.  1906,  p.  247.) 

§  1251.    Valuation  of  Yearly  Income. 

Sec.  855.  In  making  the  computation  specified  in  the  two  preceding 
sections,  the  probate  court  shall  determine  the  amount  of  such  yearly 
income,  whether  for  life  or  for  a  term  of  years,  or  the  probable  average 
annual  value  of  the  use  or  income  of  such  estate  for  life  or  for  a  term  of 
years.  (Pub.  Stats.  1906,  p.  247.) 

§  1252.     Mortality  and  Discount  Tables. 

Sec.  85B.  The  commissioner  of  state  taxes  shall  procure  suitable  tables 
f  or  the  purposes  of  this  chapter  and  may  cause  the  same  or  a  part  thereof 
to  be  printed  in  convenient  form  with  proper  explanation  for  the  use  of 
the  probate  courts  within  this  state,  and  such  tables  shall  be  used  in  com- 


VERMONT  STATUTE.  727 

puting  the  value  of  yearly  incomes  or  life  estates  mentioned  in  this  chapter. 
The  auditor  of  accounts  shall  draw  his  order  to  defray  the  expenses  in- 
curred under  this  section.  (Pub.  Stats.  1906,  p.  247.) 

§  1253.    Estates  for  Life  or  for  Years  and  Remainders. 

Sec.  857.  Whenever  a  person  bequeaths  or  devises  the  use  of  property 
for  the  term  of  a  natural  life  or  lives,  or  for  a  term  of  years,  or  gives  or 
conveys  such  use  in  the  manner  provided  in  section  eight  hundred  twenty- 
three,  to  or  for  the  use  of  any  person,  society,  institution  or  corporation 
exempt  from  the  payment  of  a  tax  imposed  by  this  chapter,  and  bequeaths, 
devises,  gives  or  conveys  the  remainder  to  a  person,  society,  institution  or 
corporation  subject  to  the  taxes  hereinbefore  imposed,  the  value  of  the 
prior  estate  shall,  in  the  manner  hereinbefore  provided,  be  deducted  from 
the  appraised  value  of  such  property;  and  the  person  entitled  to  such 
remainder  shall  be  liable  to  the  tax  imposed  by  this  chapter.  Such  tax 
shall  become  due  and  payable  at  the  same  time  that  a  tax  would  become 
due  and  payable,  if  the  entire  property,  instead  of  a  remainder  therein, 
had  passed  to  the  person  receiving  such  remainder.  (Pub.  Stats.  1906, 
p.  247;  Laws  1908,  p.  28.) 

§  1254.    Bequest  to  Executor  in  Lieu  of  Compensation. 

Sec.  858.  When  a  decedent  appoints  one  or  more  executors  or  trustees 
and,  in  lieu  of  their  compensation,  makes  a  bequest  or  devise  of  property 
to  them  which  would  otherwise  be  liable  to  a  tax  imposed  by  this  chapter, 
or  appoints  them  his  residuary  legatees,  and  such  bequests,  devises  or 
residuary  legacies  exceed  what  would  be  a  reasonable  compensation  for 
their  services,  such  excess  shall  be  liable  to  the  taxes  imposed  by  this 
chapter.  The  probate  court  having  jurisdiction  of  their  accounts  shall 
determine  what  would  have  been  such  reasonable  compensation,  and  the 
amount  of  such  excess,  if  any.  (Pub.  Stats.  1906,  p.  248.) 

§  1255.    Receipts  to  be  Issued  by  State  Treasurer. 

Sec.  859.  The  state  treasurer  shall,  upon  receiving  the  amount  of  a  tax 
under  the  provisions  of  this  chapter,  issue  receipts  in  triplicate  to  the 
person  paying  the  tax,  who  shall  forthwith  file  one  copy  thereof  with  the 
auditor  of  accounts,  one  with  the  commissioner  of  state  taxes  and  one  with 
the  probate  court  wherein  the  estate  is  administered;  provided  that  the 
person  paying  such  tax  upon  property  passing  in  any  other  manner  than 
that  described  in  section  eight  hundred  and  twenty-two  may  retain  one 
copy  of  such  receipt  instead  of  filing  the  same  with  the  probate  court. 
(Pub.  Stats.  1906,  p.  248.) 

§  1256.    Rebate  in  Case  of  Excessive  Payment. 

Sec.  860.  Whenever  the  state  treasurer  has  received  money  on  account 
of  a  tax  imposed  by  this  chapter  in  excess  of  the  amount  finally  fixed  by 
a  court  having  jurisdiction  thereof,  or  in  excess  of  the  amount  otherwise 
determined  under  the  provisions  of  this  chapter,  the  commissioner  of  state 
taxes  may  certify  the  amount  of  such  excess  and  the  name  of  the  person 


723  INHERITANCE  TAXATION. 

entitled  thereto  to  the  auditor  of  accounts,  who  shall  thereupon  draw  an 
order  for  such  excess,  in  favor  of  the  person  designated  in  such  certificate. 
Said  commissioner  shall  execute  such  certificate  in  quadruplicate  and  shall 
deliver  one  copy  thereof  to  the  person  entitled  to  such  rebate,  file  one 
with  the  state  treasurer,  and  one  with  the  auditor  of  accounts  and  retain 
one  for  his  own  files.  (Pub.  Stats.  1906,  p.  248.) 

§  1257.     Time  for  Payment  of  Tax. 

Sec.  861.  Taxes  imposed  by  this  chapter,  unless  otherwise  provided,  shall 
be  payable  to  the  state  treasurer  on  or  before  the  expiration  of  two  years 
from  the  date  of  the  death  of  the  decedent.  (Pub.  Stats.  1906,  p.  248.) 

§  1258.    Payment  of  Tax  on  Delivery  of  Distributive  Share. 

Sec.  862.  When  legacies  or  distributive  shares  are  delivered  or  paid 
within  such  two  years  to  a  legatee  or  heir,  the  taxes  due  on  account  of  such 
legacies  or  shares  shall  be  paid  to  the  state  treasurer  at  the  time  such 
legacies  or  shares  are  paid  or  delivered.  (Pub.  Stats.  1906,  p.  249.) 

§  1259.    Extension  of  Time  in  Certain  Cases. 

Sec.  863.  A  probate  court  administering  an  estate  may  extend  the  time 
within  which  a  tax  imposed  by  this  chapter  shall  be  due  and  payable,  when- 
ever the  circumstances  of  the  case  so  require.  (Pub.  Stats.  1906,  p.  249.) 

§  1260.     Extension  of  Time  Where  Value  not  Determinable. 

Sec.  864.  If,  for  any  reason,  said  probate  court  shall,  at  any  time,  be 
unable  to  determine  the  value  of  a  part  or  all  of  such  legacies  or  shares, 
or  the  amount  of  a  part  or  all  of  a  tax  due  the  state  thereon,  it  shall,  from 
time  to  time,  extend  the  time  within  which  such  taxes  shall  become  due 
and  payable.  (Pub.  Stats.  1906,  p.  249.) 

§  1261.     Records  to  be  Kept  of  Extension  of  Time. 

Sec.  865.  Whenever  the  probate  court  extends  the  time  for  assessment 
and  payment  of  a  tax  imposed  by  this  chapter,  it  shall  make  a  record 
thereof  and  shall  forthwith  file  with  the  commissioner  of  state  taxes  a 
statement  showing  the  date  to  which  such  extension  is  made  and  what 
legacies  or  shares  are  thereby  affected.  (Pub.  Stats.  1906,  p.  249.) 

§  1262.    Time  for  Payment  of  Tax. 

Sec.  866.  Taxes  due  under  the  provisions  of  section  eight  hundred  and 
twenty-three  shall  be  payable  on  or  before  the  expiration  of  three  months 
from  the  date  of  the  death  of  the  grantor  or  donor  therein  mentioned,  unless 
the  grantee  or  donee  sooner  enters  into  possession  of  the  property  acquired 
in  the  manner  therein  mentioned;  in  which  case,  the  tax  shall  thereupon 
become  payable.  (Pub.  Stats.  1906,  p.  249.) 

§  1263.    Inventory  of  Property. 

Sec.  867.  A  person  who  as  grantee  or  donee  comes  into  the  possession 
or  enjoyment  of  property  in  the  manner  specified  in  section  eight  hundred 


VERMONT  STATUTE.  729 

and  twenty-three  shall  forthwith  file  with  the  commissioner  of  state  taxes 
a  just  and  true  inventory  under  oath  of  all  such  property,  giving  a  descrip- 
tion of  the  property  included  in  such  conveyances,  deeds  and  gifts.  (Pub. 
Stats.  1906,  p.  249.) 

§  1264.     Failure  to  File  Inventory. 

Sec.  868.  A  person  who  neglects  or  refuses  to  file  the  inventory  provided 
in  the  preceding  section  shall  be  subject  to  a  penalty  of  not  more  than 
ten  per  cent  nor  less  than  five  per  cent  of  the  value  of  the  property  which 
so  comes  into  his  possession  or  enjoyment,  to  be  recovered  in  an  action 
on  this  statute  brought  in  the  name  of  the  state  by  the  commissioner  of 
state  taxes.  (Pub.  Stats.  1906,  p.  249.) 

§  1265.    Interest  on  Taxes. 

Sec.  869.  Taxes  not  paid  to  the  state  treasurer  when  due  under  the 
provisions  of  this  chapter,  unless  the  time  for  payment  thereof  has  been 
extended  by  the  probate  court  pursuant  to  the  provisions  of  this  chapter, 
shall  bear  interest  from  the  date  at  'which  the  same  become  payable  until 
the  same  are  paid.  (Pub.  Stats.  1906,  p.  249.) 

§  1266.    Reports  to  be  Made  by  Register  of  Probate. 

Sec.  870.  In  estates  wherein  property  may  be  decreed  to  a  legatee  or 
heir  liable  to  a  tax  imposed  by  this  chapter,  the  register  of  the  probate 
court  having  jurisdiction  thereof  shall,  at  the  time  of  granting  letters  of 
administration  therein,  upon  blanks  to  be  furnished  by  the  commissioner 
of  state  taxes,  report  the  name  of  the  decedent,  the  date  of  his  death,  the 
name  and  address  of  the  administrator  or  executor,  and  the  relationship,  if 
any,  and  the  names  of  all  known  legatees  or  heirs  liable  to  the  taxes  im- 
posed by  this  chapter.  (Pub.  Stats.  1906,  p.  250.) 

§  1267.     Report  to  be  Made  by  Register  of  Probate  to  Commissioner  of 

Taxes. 

Sec.  871.  Whenever  the  probate  court  fixes  a  date  for  the  determina- 
tion of  the  amount  due  to  the  state  on  account  of  a  tax  imposed  by  this 
chapter,  or  for  the  determination  of  the  value  of  a  legacy  or  share  passing 
to  a  legatee  or  heir  liable  to  such  tax,  or  for  the  determination  of  any 
matter  pertaining  to  a  tax  imposed  by  this  chapter,  the  register  of  probate 
shall,  upon  blanks  furnished  for  that  purpose  by  the  commissioner  of  state 
taxes,  forthwith  mail  to  said  commissioner  a  statement  showing  the  name 
of  the  estate,  the  date  of  such  hearing,  the  nature  thereof,  whether  or  not 
the  property  out  of  which  such  legacy  or  share  is  to  be  decreed  is  in  money 
or  its  equivalent,  and,  if  in  other  property,  a  brief  description  thereof  as 
shown  by  the  files  of  said  court.  If  such  hearing  is  continued,  notice 
thereof  shall  be  given  in  person  or  by  mail  to  said  commissioner.  (Pub. 
Stats.  1906,  p.  250.) 

§  1268.    Application  by  Tax  Commissioner  for  Administration. 

Sec.  872.  If,  upon  the  decease  of  a  person  leaving  an  estate  passing 
in  whole  or  in  part  to  legatees  or  heirs  liable  to  the  taxes  imposed  by  this 


730  INHERITANCE   TAXATION. 

chapter,  no  will  disposing  of  such  estate  is  offered  for  probate  within  the 
time  prescribed  by  law  and  no  application  for  administration  is  made  within 
four  months  from  the  date  of  such  decease,  the  commissioner  of  state  taxes 
shall  apply  to  the  probate  court  for  the  appointment  of  an  administrator 
of  such  estate.  (Pub.  Stats.  1906,  p.  250.) 

§  1269.     Notice  to  Commissioner  of  Taxes  of  Taxable  Transfers. 

Sec.  873.  A  judge  or  register  of  probate  shall  forthwith  notify  the  com- 
missioner of  state  taxes,  upon  blanks  to  be  furnished  by  him,  of  estates 
mentioned  in  the  preceding  section,  known  to  them  or  either  of  them,  in 
which  no  will  or  application  for  administration  is  presented  within  the 
time  specified.  (Pub.  Stats.  1906,  p.  250.) 

§  1270.     Copies  of  Papers  and  Records. 

Sec.  874.  An  administrator,  executor,  trustee  or  other  legal  representa- 
tive of  a  decedent,  appointed  by  a  probate  court  within  this  state  or  by 
a  foreign  court  or  government,  shall,  when  required  in  writing  by  the  com- 
missioner of  state  taxes,  within  a  reasonable  time  after  receiving  such 
requisition  and  without  expense  to  the  state,  furnish  said  commissioner  a 
certified  copy  of  any-  part  or  all  of  any  record,  or  of  the  will,  inventory 
or  other  document  required  to  be  filed  in  the  court  wherein  the  estate  of 
which  he  is  such  administrator,  executor,  trustee  or  legal  representative 
is  being  administered.  (Pub.  Stats.  1906,  p.  250.) 

§  1271.    Refusal  of  Officer  to  Furnish  Copies. 

See.  875.  An  administrator,  executor,  trustee  or  legal  representative 
mentioned  in  the  preceding  section,  appointed  by  a  probate  court  in  this 
state,  shall  forfeit  to  the  state  five  dollars  for  each  day's  neglect  or  refusal 
to  provide  the  certified  copies  therein  specified,  within  a  reasonable  time 
after  receiving  requisition  therefor;  and  if  a  foreign  administrator,  executor, 
trustee  or  legal  representative  neglects  or  refuses  to  furnish  the  copies 
therein  required,  no  certificate  shall  be  given  by  the  commissioner  of  state 
taxes  under  the  provisions  of  section  eight  hundred  and  eighty-two,  until 
such  certified  copies  are  furnished  and  a  reasonable  time  has  thereafter 
elapsed.  (Pub.  Stats.  1906,  p.  251.) 

§  1272.     Transfers  of  Stock  or  Obligations  by  Foreign  Executor. 

Sec.  876.  L  If  a  foreign  administrator,  executor  or  trustee  assigns  or  trans- 
fers any  stock  or  obligation  in  a  domestic  corporation,  or  in  a  foreign  corpora- 
tion having  its  principal  place  of  business  located  in  this  state,  or  in  a 
national  bank  located  in  this  state,  owned  by  a  deceased  nonresident  at 
the  time  of  his  death  and  passing  by  will  or  the  laws  of  descent  of  the 
state  or  government  wherein  such  administrator,  executor  or  trustee  receives 
his  appointment,  to  or  for  the  use  of  any  person  other  than  the  father, 
mother,  husband,  wife,  lineal  descendant,  stepchild,  child  adopted  as  afore- 
said, child  of  a  stepchild  or  of  such  adopted  child,  the  wife  or  widow  of  a 
son,  the  husband  of  a  daughter,  a  bishop  in  his  ecclesiastical  capacity  for 
religious  uses  within  this  state,  a  town  or  city  in  this  state  for  cemetery 


VERMONT  STATUTE.  731 

purposes,  or  to  or  for  the  use  of  a  charitable,  educational  or  religious 
society  or  institution  created  and  existing  under  the  laws  of  this  state, 
such  administrator,  executor  or  trustee  shall  pay  to  the  state  a  tax  equal  to 
five  per  cent  of  the  value  in  money,  at  the  date  of  such  assignment  or 
transfer,  of  such  part  or  all  of  such  stocks  or  obligations  so  passing  by 
will  or  the  laws  of  descent. 

II.  If  such  taxes  are  not  paid  on  or  before  the  date  of  such  assignment 
or  transfer,  they  shall  be  a  lien  on  such  stock  or  obligation  until  the  same 
are  paid. 

III.  In  determining  the  amount  of  any  tax  imposed  by  this  section,  no 
deductions  on  account  of  debts  or  expenses  of  administration  shall  be  made 
unless  such  debts  or  expenses  have  been  allowed  by  the  probate,  surrogate 
or  other  court  having  original  jurisdiction  of  said  estate. 

IV.  The   words  "stock"  and   "obligation,"  as  used  in   this   section,  shall 
be  construed  to  include  the  proceeds  thereof.     (Pub.  Stats.   1906,  p.  251; 
Laws  1910,  p.  57.) 

§  1273.  Penalty  for  Recording  Transfer  of  Stock  Without  Payment  of  Tax. 
Sec.  877.  A  domestic  corporation,  or  a  foreign  corporation  having  its 
principal  place  of  business  in  this  state,  or  a  national  bank  located  in  this 
state,  which  records  a  transfer  of  a  share  of  its  stock  or  of  its  obligation, 
made  by  a  foreign  administrator,  executor  or  trustee,  or  which  issues  a 
new  certificate  for  a  share  of  its  stock  or  of  the  transfer  of  an  obligation 
aforesaid  at  the  instance  of  a  foreign  administrator,  executor  or  trustee, 
before  the  taxes  imposed  by  the  preceding  section  are  paid,  shall  be  liable 
for  such  tax  in  an  action  upon  this  statute  brought  in  the  name  of  the  state 
by  the  commissioner  of  state  taxes.  (Pub.  Stats.  1906,  p.  251.) 

§  1274.     Transfer  or  Receipts  of  Securities  or  Assets  by  Foreign  Executor 

or  Legatee. 

Sec.  878.  I.  If  a  foreign  administrator,  executor  or  trustee  of  a  non- 
resident decedent,  or  a  legatee  or  heir  of  such  decedent,  or  an  assignee  of 
such  administrator,  executor,  trustee,  legatee  or  heir,  collects,  receives  or 
assigns  securities  or  assets,  being  in  this  state  at  the  time  of  the  death 
of  such  nonresident  decedent  and  belonging  to  him  at  his  decease,  which 
shall  pass  in  whole  or  in  part  by  will  or  the  laws  of  descent  of  the  state 
or  government  wherein  such  foreign  administrator,  executor  or  trustee  has 
received  his  appointment,  to  or  for  the  use  of  any  person  other  than  the 
father,  mother,  husband,  wife,  lineal  descendant,  stepchild,  child  adopted 
as  aforesaid,  child  of  a  stepchild  or  of  such  adopted  child,  the  wife  or 
widow  of  a  son,  the  husband  of  a  daughter,  a  bishop  in  his  ecclesiastical 
capacity  for  religious  uses  within  this  state,  or  a  town  or  city  in  this  state 
for  cemetery  purposes,  or  to  or  for  the  use  of  a  charitable,  educational  or 
religious  society  or  institution  created  and  existing  under  the  laws  of  this 
state,  such  foreign  administrator,  executor  or  trustee,  the  assignee  of  such 
securities  or  assets,  or  any  legatee  or  heir  of  such  nonresident  decedent, 
shall  pay  to  the  state  a  tax  equal  to  five  per  cent  of  the  value  in  money, 


732  INHERITANCE   TAXATION. 

at  the  date  of  the  delivery,  collection  or  assignment  of  such  part  or  all  of 
such  securities  or  assets  so  passing  by  will  or  the  laws  of  descent. 

II.  If  such  taxes  are  not  paid  on  or  before  the  date  of  such  delivery, 
collection  or  assignment,  they  shall  be  a  lien  on  such  securities  or  assets 
until  such  taxes  are  paid. 

III.  In  determining  the  amount  of  any  tax  imposed  by  this  section,  no 
deductions    on    account   of    debts    or    expenses    of    administration    shall   be 
made,  unless  such  debts   or  expenses  have  been   allowed  by  the  probate, 
surrogate  or  other  court  having  original  jurisdiction  of  said  estate.     (Pub. 
Stats.  1906,  p.  252;  Laws  1910,  p.  58.) 

§  1275.     Transfer  to  Foreign  Executor  not  Made  Until  Taxes  Paid. 

Sec.  879.  The  securities  or  assets  mentioned  in  the  preceding  section 
ehall  not  be  delivered  or  transferred  by  a  person  or  corporation  to  a  foreign 
administrator,  executor  or  trustee  of  a  nonresident  decedent,  nor  to  a 
legatee  or  heir  of  such  decedent,  nor  to  an  assignee  of  such  administrator, 
executor,  trustee,  legatee  or  heir,  before  the  taxes,  if  any,  imposed  by  the 
preceding  section  are  paid,  or  the  certificate  mentioned  in  section  eight 
hundred  eighty-two  is  issued  by  said  commissioner.  Said  commissioner, 
or  person  designated  by  him  in  writing,  may  at  all  reasonable  times  ex- 
amine such  securities  or  assets.  (Pub.  Stats.  1906,  p.  252;  Laws  1910,  p. 
68.) 

§  1276.     Failure  to  Mail  or  Deliver  Notice. 

Sec.  880.  Failure  to  mail  or  deliver  such  notice  as  provided  in  the  pre- 
ceding section  shall  render  the  person  or  corporation  required  to  report 
such  delivery  or  transfer  liable  in  an  action  upon  this  statute,  brought  in 
the  name  of  the  state  by  the  commissioner  of  state  taxes,  for  all  taxes 
imposed  by  the  second  preceding  section.  (Pub.  Stats.  1906,  p.  252.) 

§  1277.    Payment  of   Bank  Deposit. 

Sec.  881.  No  savings  bank,  savings  institution,  trust  company  or  savings 
bank  and  trust  company  shall  pay  a  part  or  all  of  a  deposit,  or  any  interest 
or  dividend  thereon,  to  an  administrator  or  executor,  under  the  provisions 
of  section  four  thousand  six  hundred  and  thirty-seven,  nor  transfer  the 
same  to  the  account  of  any  person  upon  its  records,  unless  the  certificate 
mentioned  in  the  following  section  has  been  delivered  thereto.  (Pub.  Stats. 
1906,  p.  252.) 

§  1278.    Certificate  of  Nonliability  by  Tax  Commissioner. 

Sec.  882.  A  certificate  signed  by  the  commissioner  of  state  taxes  cer- 
tifying that  an  administrator,  executor,  trustee,  legatee,  heir  or  assignee 
is  not  liable  to  the  taxes  imposed  by  sections  eight  hundred  and  seventy- 
six  and  eight  hundred  and  seventy-eight,  or  certifying  that  such  taxes  are 
paid,  shall  operate  as  a  waiver  or  discharge  of  all  liability  to  the  state 
on  the  part  of  any  person  or  corporation  mentioned  in  the  six  preceding 
sections.  (Pub.  Stats.  1906,  p.  253.) 


VERMONT  STATUTE.  733 

§  1279.    Notice  by  Bank  to  Tax  Commissioner. 

Sec.  883.  A  savings  bank,  savings  institution,  trust  company,  or  savings 
bank  and  trust  company  shall  notify  the  commissioner  of  state  taxes,  upon 
blanks  to  be  furnished  by  him,  of  the  decease  of  any  nonresident  depositor 
and  the  name  and  residence  of  any  foreign  administrator,  executor  or 
trustee  as  soon  as  the  same  is  known  thereto.  (Pub.  Stats.  1906,  p.  253.) 

§  1280.  Bank  not  to  Pay  Deposit  Without  Consent  of  Tax  Commissioner. 
Sec.  884.  If  a  savings  bank,  savings  institution,  trust  company,  or  sav- 
ings bank  and  trust  company  has  notice  of  the  death  of  a  depositor  residing 
within  this  state  at  the  time  of  his  decease,  or  has  reasonable  grounds  for 
believing  him  to  be  dead,  it  shall  not,  without  the  consent  in  writing  of 
the  commissioner  of  state  taxes,  pay  or  transfer  upon  its  records  a  part 
or  all  of  a  deposit  or  account  standing  in  the  name  of  such  decedent,  for 
which  an  order,  assignment  or  other  instrument  in  writing  signed  by  such 
decedent  has  been  given,  other  than  checks  given  in  the  ordinary  course 
of  business.  Notice  in  writing  shall  be  forthwith  given  by  such  corpora- 
tion to  said  commissioner,  setting  forth  the  character  of  such  order,  assign- 
ment or  other  instrument,  and  the  name  and  residence  of  the  payee  or  as- 
signee therein  named.  (Pub.  Stats.  1906,  p.  253.) 

§  1281.    Failure  of  Bank  or  Trust  Company  to  Obey  Law — Penalty. 

Sec.  885.  A  savings  bank,  savings  institution,  trust  company,  or  sav- 
ings bank  and  trust  company,  that  willfully  violates  a  provision  of  the 
first,  second  and  fourth  preceding  sections,  shall  be  liable  to  the  state,  in 
an  action  on  this  statute,  brought  in  the  name  of  the  state  by  the  com- 
missioner of  state  taxes,  for  all  taxes  imposed  by  sections  eight  hundred 
and  seventy-six  and  eight  hundred  and  seventy-eight  upon  a  person  liable 
to  the  same.  But  no  such  action  <  shall  be  commenced  without  the  consent 
of  the  governor.  (Pub.  Stats.  1906,  p.  253.) 

§  1282.    Petition  by  Tax  Commissioner  to  Determine  Amount  of  Tax  Due. 

Sec.  886.  Whenever  the  commissioner  of  state  taxes  claims  that  a  tax  is 
due  on  account  of  a  transfer  of  property  in  the  manner  described  in  sections 
eight  hundred  and  twenty-three,  eight  hundred  and  seventy-six,  eight  hun- 
dred and  seventy-eight  or  eight  hundred  and  eighty-four,  he  may,  in  the 
name  of  the  state,  petition  the  court  of  chancery  in  any  county  to  determine 
the  amount  of  any  or  all  taxes  due,  as  provided  in  such  sections,  and  to 
establish  such  taxes  as  a  lien  upon  the  property  passing  or  being  trans- 
ferred in  the  manner  therein  mentioned.  (Pub.  Stats.  1906,  p.  253.) 

§  1283.     Service  of  Petition. 

Sec.  887.  Service  of  the  petition  mentioned  in  the  preceding  section  \nay 
be  made  in  the  manner  provided  by  law;  and  service  thereof  upon  a  foreign 
administrator,  executor,  trustee,  legatee  or  assignee  may  be  made  by  deliv- 
ering a  copy  of  such  petition  to  the  custodian  of  the  property  in  this  state 
therein  named.  (Pub.  Stats.  1906,  p.  254.) 


734  INHERITANCE  TAXATION. 

§  1284.    Hearing  In  Court  of  Chancery. 

Sec.  888.  A  court  of  chancery  or  a  chancellor  shall,  subject  to  the  right 
of  appeal  to  the  supreme  court,  hear  and  determine  such  cause  at  a  stated 
term  of  said  court  or  during  vacation,  and  may  grant  temporary  and  per- 
manent injunctions  restraining  any  or  all  persons  or  corporations  men- 
tioned in  the  sections  named  in  the  second  preceding  section,  from  making 
any  transfer  or  other  disposition  of  the  property  named  therein,  until  all 
taxes  imposed  by  this  chapter  and  found  to  be  due  on  account  of  the  pass- 
ing of  such  property  in  the  manner  therein  mentioned  are  paid,  and  shall 
make  all  necessary  orders  and  decrees  to  carry  out  the  provisions  of  this 
chapter.  (Pub.  Stats.  1906,  p.  254.) 

§  1285.    Appellate  Proceedings. 

Sec.  889.  In  cases  of  appeals  involving  questions  arising  under  the  pro- 
visions of  this  chapter,  the  state  shall  not  be  required  to  give  a  bond  or 
recognizance  for  costs  or  for  an  appeal,  nor  an  injunction  bond.  (Pub. 
Stats.  1906,  p.  254.) 

§  1286.    Proceedings  Installed  by  Tax  Commissioner  In  Probate  Court. 

Sec.  890.  A  probate  court,  upon  application  of  the  commissioner  of  state 
taxes,  may  summon  and  examine,  upon  oath,  respecting  any  matter  per- 
taining to  a  tax  or  penalty  imposed  by  this  chapter,  an  officer,  stockholder, 
member  or  agent  of  a  corporation  mentioned  in  sections  eight  hundred  and 
seventy-six,  eight  hundred  and  eighty-one,  eight  hundred  and  eighty-three 
or  eight  hundred  and  eighty-four,  or  of  any  corporation  or  banking  institu- 
tion having  its  principal  place  of  business  in  the  probate  district  wherein 
such  probate  court  has  jurisdiction;  a  custodian  of  the  securities  or  assets, 
or  the  proceeds  thereof,  mentioned  in  section  eight  hundred  and  seventy- 
eight,  residing  or  having  its  principal  place  of  business  in  such  probate 
district;  an  administrator,  executor,  trustee,  legatee,  heir  or  assignee  men- 
tioned in  the  last-named  section,  entitled  to  receive  or  who  has  received 
any  part  or  all  of  such  securities  or  assets,  or  the  proceeds  thereof,  held  by 
such  custodian;  a  member  or  officer  of  a  society  or  institution,  and  a  person 
entitled  to  receive  or  who  has  received  a  part  or  all  of  such  securities, 
assets  or  proceeds  thereof  mentioned  in  section  eight  hundred  and  seventy- 
eight  from  a  custodian  thereof  residing  or  having  its  principal  place  of 
business  in  such  probate  district,  or  who  is  entitled  to  receive  or  has  re- 
ceived, by  assignment  or  otherwise,  a  part  or  all  of  a  deposit  mentioned  in 
sections  eight  hundred  and  eighty-one  or  eight  hundred  and  eighty-four, 
from  a  banking  institution  having  its  principal  place  of  business  in  such 
probate  district;  and  the  grantee  or  donee  of  property,  or  an  interest  therein, 
passing  in  the  manner  set  forth  in  section  eight  hundred  and  twenty-three, 
within  such  probate  district.  (Pub.  Stats.  1906,  p.  254.) 

§  1287.    Jurisdiction  of  Court  in  Such  Proceedings. 

Sec.  891.  If  a  probate  court  has  issued  a  summons  for  a  person  men- 
tioned in  the  preceding  section,  or  has  examined  a  person  therein  named 
concerning  any  matter  pertaining  to  a  tax  or  penalty  imposed  by  this 


VERMONT  STATUTE.  735 

chapter,  said  court  shall  thereupon  have  jurisdiction  to  summon  and  so 
examine  any  and  all  persons  therein  named,  notwithstanding  the  residence 
of  such  person,  the  location  of  the  principal  place  of  business  of  a  corpora- 
tion specified  in  the  preceding  section,  or  the  location  of  property  therein 
specified,  is  in  some  town  or  city  without  the  probate  district  within  which 
said  court  has  original  jurisdiction  to  issue  such  summons  and  conduct  such 
examination.  (Pub.  Stats.  1906,  p.  255.) 

§  1288.     Issuance  of  Letters  of  Administration. 

Sec.  892.  If,  upon  the  examination  specified  in  the  two  preceding  sec- 
tions, the  probate  court  wherein  such  examination  is  had,  determines  that, 
in  order  to  aid  in  the  collection  of  a  tax  imposed  by  this  chapter,  an  ad- 
ministrator should  be  appointed  to  administer  upon  the  estate  whereof 
property  within  its  original  jurisdiction,  passing  to  a  person  liable  to  a  tax 
imposed  by  this  chapter,  is  the  whole  or  a  part,  said  probate  court  shall  take 
jurisdiction  of  such  estate  and  shall  thereupon  issue  letters  of  administra- 
tion. (Pub.  Stats.  1906,  p.  255.) 

§  1289.    Jurisdiction  of  Court  After  Issuance  of  Letters. 

Sec.  893.  Whenever  letters  of  administration  are  issued  upon  an  estate 
mentioned  in  the  preceding  section,  the  probate  court  issuing  such  letters 
shall  have  jurisdiction  of  all  property  within  this  state  belonging  thereto. 
The  same  proceedings  shall  be  had  in  such  estate  as  provided  by  law  for  the 
settlement  of  an  estate  wherein  no  will  is  probated.  (Pub.  Stats.  1906,  p. 
255.) 

§  1290.     Production  of  Books  of  Accounts,  Records,  etc. 

Sec.  894.  The  probate  court  shall  hare  authority  to  require,  by  summons 
or  otherwise,  the  production  of  books  of  account,  records  or  documents  kept 
or  possessed  by  a  corporation  or  person  mentioned  in  the  third  and  fourth 
preceding  sections,  concerning  matters  as  to  which  information  shall  be  re- 
quired to  carry  out  the  provisions  of  this  chapter.  (Pub.  Stats.  1906,  p.  255.) 

§  1291.     Power  of  Probate  Court  to  Issue  Summons  or  Citation. 

Sec.  895.  A  probate  court  shall  have  power  to  summon  a  person  not  here- 
inbefore specifically  mentioned  to  appear  before  said  court  to  give  evidence 
therein  respecting  any  matter  or  thing  hereinbefore  mentioned  which  shall 
be  the  subject  of  investigation;  and  said  court  may  also  require  such  person 
to  produce  in  court  any  book  of  account,  record  or  document  pertinent  to 
such  investigation.  (Pub.  Stats.  1906,  p.  255.) 

§  1292.     Compensation  of  Witnesses. 

Sec.  896.  Persons  except  those  liable  to  pay  a  tax  imposed  by  this 
chapter  shall  be  allowed  the  same  per  diem  and  travel  fees  as  witnesses  in 
county  court,  to  be  paid  by  the  state  on  the  certificate  of  the  commissioner 
of  state  taxes.  (Pub.  Stats.  1906,  p.  255.) 


736  INHERITANCE  TAXATION. 

§  1293.    Penalty  for  Refusal  to  Appear  or  Testify  Before  Probate  Court 

Sec.  897.  A  person  or  officer  designated  in  sections  eight  hundred  and 
ninety,  eight  hundred  and  ninety-one  or  eight  hundred  and  ninety-five  who 
refuses  or  neglects  to  appear  before  the  probate  court  in  obedience  to  the 
gummons  therein  mentioned,  or  refuses  to  be  sworn  as  hereinbefore  pro- 
vided, or  neglects  or  refuses  to  produce  the  books,  records  or  documents 
mentioned  in  sections  eight  hundred  and  ninety-four  and  eight  hundred  and 
ninety-five,  or  refuses  to  testify  concerning  any  matter  respecting  which  he 
shall  be  lawfully  examined,  shall  be  fined  not  more  than  five  thousand 
dollars  nor  less  than  five  hundred  dollars.  (Pub.  Stats.  1906,  p.  256.) 

§  1294.    Report  of  Listers. 

Sec.  898.  Listers  in  the  several  towns  shall  annually,  within  ten  days 
after  the  date  on  which  the  grand  list  is  required  by  law  to  be  filed  by 
them  with  the  town  clerk,  report  to  the  commissioner  of  state  taxes,  upon 
blanks  to  be  furnished  by  him,  the  names  of  persons  who  acquired,  within 
the  year  ending  with  the  first  day  of  April  in  the  year  in  which  such  report 
is  made,  real  or  personal  estate  situate  in  such  town,  or  an  interest  therein, 
passing  from  a  deceased  person  by  the  law»  of  descent  or  in  the  manner 
specified  in  section  eight  hundred  and  twenty-three.  (Pub.  Stats.  1906,  p. 
256.) 

§  1295.    False  Returns  or  Report — Perjury. 

Sec.  899.  A  person  who  willfully  swears  falsely  to  a  return,  report  or 
statement,  or  upon  an  examination  hereinbefore  mentioned,  shall  be  guilty 
of  perjury.  (Pub.  Stats.  1906,  p.  256.) 

§  1296.     Time  When  Statute  Takes  Effect. 

Sec.  900.  The  foregoing  sections  of  this  chapter,  in  so  far  as  they  per- 
tain to  a  tax  imposed  upon  a  person,  corporation,  society  or  institution  that 
shall,  in  any  manner  hereinbefore  provided,  receive  property  or  any  interest 
therein  passing  from  a  deceased  person,  shall  also  apply  to  the  estates  of 
all  persons  who  deceased  prior  to  December  ninth,  nineteen  hundred  and 
four,  but  whose  estates  were  not  then  decreed  or  distributed;  but  if  any 
part  of  such  estate  has  been  lawfully  paid  or  decreed  prior  to  such  date, 
such  part  shall  not  be  affected  by  this  chapter;  nor  shall  this  chapter  apply 
to  an  act  done  prior  to  such  date  for  which  a  penalty  is  hereinbefore  pro- 
vided. (Pub.  Stats.  1906,  p.  256.) 

§  1297.    Liabilities  Already  Accrued  Under  Previous  Statutes. 

Sec.  901.  This  chapter  shall  not,  except  as  otherwise  provided,  affect  the 
liability  of  any  person,  corporation,  society  or  institution  to  pay  taxes 
already  accrued  under  the  provisions  of  number  forty-six  of  the  acts  of 
eighteen  hundred  and  ninety-six,  nor  any  proceedings  affecting  the  same. 
(Pub.  Stats.  1906,  p.  256.), 


VIEGINIA  STATUTE.  737 


CHAPTER  LVI. 

VIRGINIA  STATUTE. 

(Acts  of  190S,  c.  148;  2  Code  (1904),  p.  2219;  Acts  of  1910,  pp.  SS9,  SSO  ; 
S  Code  Supp.  (1910),  pp.  530,  5S1.) 

§  1298.  Transfers  Subject  to  Tax — Rates — Exemptions. 

§  1299.  Collection  of  Tax  by  Personal  Representative. 

§  1300.  Collection  of  Tax  on  Real  Estate — Lien  and  Sale. 

§  1301.  Payment  to  County  Treasurer. 

§  1302.  Determination    of   Tax   by   Court— Duties   of   Clerk,   Auditor   and 

Treasurer. 

§  1303.  Penalty  for  Failure-  to  Pay  Tax. 

§  1298.     Transfers  Subject  to  Tax— Bates— Exemptions. 

Sec.  44.  (a)  Where  any  estate  in  this  commonwealth  of  any  decedent 
shall  pass  under  his  will,  or  the  laws  regulating  descents  and  distributions, 
to  any  other  person  or  for  any  other  use  than  to  or  for  the  use  of  the  grand- 
father and  grandmother,  father,  mother,  husband,  wife,  brother,  sister  or 
lineal  descendant  of  such  decedent,  the  estate  so  passing  shall  be  subject  to 
a  tax  at  the  rate  of  five  per  centum  on  every  hundred  dollars  value  thereof; 
provided,  that  such  tax  shall  not  be  imposed  upon  any  property  bequeathed 
or  devised  where  such  bequest  or  devise  is  exclusively  for  state,  county, 
municipal,  benevolent,  charitable,  educational,  or  religious  purposes. 

§  1299.    Collection  of  Tax  by  Personal  Representative. 

(b)  The  personal  representative  of  such  decedent  shall  pay  the  whole  of 
such  tax,  except  on  real  estate,  to  sell  which  or  to  receive  the  rents  and 
profits  of  which  he  is  not  authorized  by  the  will,  and  the  sureties  on  his 
official  bond  shall  be  bound  for  the  payment  thereof. 

§  1300.    Collection  of  Tax  on  Eeal  Estate — Lien  and  Sale. 

(c)  Where  there  is  no  personal  estate,  or  the  personal  representative  is 
not  authorized  to  sell  or  receive  the  rents  and  profits  of  the  real  estate, 
the  tax  shall  be  paid  by  the  devisee  or  devisees,  or  those  to  whom  the  estate 
may  descend  by  operation  of  law,  and  the  tax  shall  be  a  lien  on  such  real 
estate,  and  the  treasurer  may  rent  or  levy  upon  and  sell  so  much  of  said  real 
estate  as  shall  be  sufficient  to  pay  the  tax  and  expenses  of  sale,  et  cetera. 

§  1301.    Payment  to  County  Treasurer. 

(d)  Such  payment  shall  be  made  to  the  treasurer  of  the  county  or  city  in 
which   certificate  was  granted   such   personal   representative  for  obtaining 
probate  of  the  will  or  letters  of  administration. 

47 


738  INHERITANCE   TAXATION. 

§  1302.    Determination  of  Tax  by  Court — Duties  of  Clerk,  Auditor  and 
Treasurer. 

(e)  .The  corporation  or  hustings  court  of  a  city,  the  circuit  court  of  a 
county  or  city,  the  chancery  court  of  the  city  of  Kichmond,  the  law  and 
chancery  court  of  the  city  of  Norfolk,  or  the  clerk  of  the  circuit  court  of  a 
county  or  city  before  whom  a  will  is  probated  or  administration  is  granted, 
shall  determine  the  collateral  inheritance   tax,  if  any,  to  be   paid  on  the 
estate  passing  by  will  or  administration,  and  shall  enter  of  record  in  the 
order  book  of  the  court  or  clerk,  as  the  case  may  be,  by  whom  such  tax  shall 
be  paid  and  the  amount  to  be  paid.     The  clerk  of  the  court  shall  certify  a 
copy  of  such  order  to  the  treasurer  of  his  county  or  city  and  to  the  auditor 
of  public  accounts,  for  which  services  the  clerk  shall  be  paid  a  fee  of  two 
dollars  and  fifty  cents  by  the  personal  representative  of  the  estate.     The 
auditor  of  public  accounts  shall  charge  the  treasurer  with  the  tax,  and  the 
treasurer  shall  pay  the  same  into  the  treasury  as  soon  as  collected,  less  a 
commission   of  five   per    centum.     Every   personal   representative   or   other 
party  or  officer  failing  in  any  respect  to   comply  with  this  section   shall 
forfeit  one  hundred  dollars. 

§  1303.    Penalty  for  Failure  to  Pay  Tax. 

(f)  Any  personal  representative,  devisee  or  person  to  whom  the  estate 
may  descend  by  operation  of  law,  failing  to  pay  such  tax  before  the  estate 
on  which  it  is  chargeable  is  paid  or  delivered  over  (whether  he  be  applied 
to  for  the  tax  or  not)  shall  be  liable  to  damages  thereon  at  the  rate  of  ten 
per  centum  per  annum  for  the  time  such  estate  is  paid  or  delivered  over 
until  the  tax  is  paid,  which  damages  may  be  recovered  with  the  tax,  on 
motion  of  the  commonwealth,  and  in  the  name  of  the  commonwealth  against 
him,  in  the  circuit  court  for  the  county  or  in  the  corporation  court  of  the 
city  wherein  such  tax  was  assessed,  except  that  in  the  city  of  Richmond 
the  motion   shall  be  in  the  chancery  court.     Such  estate  shall  be  deemed 
paid  or  delivered  at  the  end  of  a  year  from  the  decedent's  death,  unless  and 
except  so  far  as  it  may  appear  that  the  legatee  or  distributee  has  neither 
received  such  estate  nor  is  entitled  then  to  demand  it.     (1&10,  pp.  229,  230; 
3  Cod*  Supp.  (1910),  p.  530.) 


WASHINGTON  STATUTES  739 


CHAPTER  LVII. 

WASHINGTON  STATUTE. 

(2  Eemington  $•  Ballinger's  Codes  and  Statutes,  pp.  S08S-S088;  Lawt  of  1911, 

p.  60.) 

8  1304.  Transfers  Subject  to  Tax — Deductions — Interest — Lien. 

§  1305.  Bates   of  Taxation. 

§  1306.  Property  Subject  to  Tax. 

§   1307.  Property   Belonging  to   Foreign   Estate. 

§  1308.  Appraisement  of  Property  and  Collection  of  Tar. 

§  1309.  Estates  for  Life  and  Remainder  in  Favor  of  Lineal  Descendant. 

§  1310.  Estate  for  Life  in  Favor  of  Collateral  Relatives. 

§  1311.  Bequest  to  Executor  in  Lieu  of  Commissions. 

§  1312.  Legacy  Charged  upon  ReaK  Estate. 

§  1313.  Collection  of  Tax  by  Executor. 

§  1314.  Payment  to  State  Treasurer — Receipts — Interest. 

§  1315.  Appraisers  and  Appraisement. 

§  1316.  Transfer  of  Stock  or  Obligations  by  Foreign  Executor. 

§  1317.  Statement  of  Character  of  Property  and  Names  of  Heirs. 

§  1318.  Extension  of  Time  for  Filing  Appraisement. 

§  1319.  Compromise  by  Tax  Commissioners. 

§  1320.  Powers  and  Duties  of  Tax  Commissioners. 

§  1321.  Exemptions  of  Charitable  Institutions. 

§  1304.     Transfers   Subject  to   Tax — Deductions — Interest — Lien. 

Sec.  9182.  All  property  within  the  jurisdiction  of  this  state,  and  any  in- 
terest therein,  whether  belonging  to  the  inhabitants  of  this  state  or  not,  and 
whether  tangible  or  intangible,  which  shall  pass  by  will  or  by  the  statutes 
of  inheritance  of  this  or  any  other  state,  or  by  deed,  grant,  sale  or  gift  made 
in  contemplation  of  the  death  of  the  grantor  or  donor,  or  by  deed,  grant,  sale 
or  gift  made  or  intended  to  take  effect  in  possession  or  in  enjoyment  after 
the  death  of  the  grantor  or  donor  to  any  person  in  trust  or  otherwise,  shall, 
for  the  use  of  the  state,  be  subject  to  a  tax  as  provided  for  in  section  9183, 
after  the  payment  of  all  debts  owing  by  the  decedent  at  the  time  of  his  death, 
the  local  and  state  taxes  due  from  the  estate  prior  to  his  death,  and  a  reason- 
able sum  for  funeral  expenses,  court  costs,  including  cost  of  appraisement 
made  for  the  purpose  of  assessing  the  inheritance  tax,  the  statutory  fees  of 
executors,  administrators  or  trustees,  and  no  other  sum,  but  said  debts  shall 
not  be  deducted  unless  the  same  are  allowed  or  established  within  the  time 
provided  by  law,  unless  otherwise  ordered  by  the  judge  or  court  of  the  proper 
county,  and  all  administrators,  executors  and  trustees,  and  any  such  grantee 
under  a  conveyance,  and  any  such  donee  under  a  gift,  made  during  the  gran- 
tor's or  donor's  life,  shall  be  respectively  liable  for  all  such  taxes  to  be  paid  by 
them,  with  lawful  interest  until  the  same  shall  have  been  paid.  The  inher- 
itance tax  shall  be  and  remain  a  lien  on  such  estate  from  the  death  of  the 


740  INHERITANCE   TAXATION. 

decedent  until  paid.     (Laws  1901,  p.  67;  Laws  1907,  p.  499;  2  Bern.  &  Bal. 
Codes  &  Stats.,  p.  2082.) 

§  1305.    Rates  of  Taxation. 

Sec.  9183.  The  inheritance  tax  shall  be  and  is  to  be  levied  on  all  estates 
subject  to  the  operation  of  this  act  on  all  sums  above  the  first  ten  thousand 
dollars,  where  the  same  shall  pass  to  or  for  the  use  of  the  father,  mother,  hus- 
band, wife,  lineal  descendant,  adopted  child,  or  lineal  descendant  of  an  adopted 
child,  one  (1)  per  centum.  On  all  sums  not  exceeding  the  first  fifty  thousand 
dollars,  of  three  per  centum,  where  such  estate  passes  to  collateral  heirs  to 
and  including  the  third  degree  of  relationship,  and  to  six  per  centum  where 
such  estates  pass  to  collateral  heirs  beyond  the  third  degree,  or  to  strangers 
to  the  blood.  On  all  sums  above  the  first  fifty  thousand  dollars  and  not 
exceeding  the  first  one  hundred  thousand  dollars,  four  and  one-half  per  centum 
to  collateral  heirs,  to  and  including  the  third  degree,  and  nine  per  centum 
to  collateral  heirs,  beyond  the  third  degree,  or  to  strangers  to  the  blood.  And 
on  all  sums  in  excess  of  the  first  one  hundred  thousand  dollars,  the  tax  shall 
be  six  per  centum  to  collateral  heirs  to  and  including  the  third  degree,  and 
twelve  per  centum  to  collateral  heirs  beyond  the  third  degree  or  to  strangers 
to  the  blood.  (Laws  1901,  p.  68;  Laws  1907,  p.  500;  2  Kem.  &  Bal.  Codes 
&  Stats.,  p.  2082;  Laws  1911,  p.  60.) 

• 
§  1306.     Property  Subject  to  Tax. 

Sec.  9184.  Except  as  to  the  limitations  prescribed  in  section  9183  from 
the  inheritance  tax  and  real  property  located  outside  the  state  passing  in  fee 
from  the  decedent  owner,  the  tax  imposed  under  section  9183,  shall  hereafter 
be  assessed  against  and  be  collected  from  property  of  every  kind,  which,  at 
the  death  of  the  decedent  owner  is  subject  to,  or  thereafter,  for  the  purpose 
of  distribution,  is  brought  into  this  state  and  becomes  subject  to  the  jurisdic- 
tion of  the  courts  of  this  state  for  distribution  purposes,  or  which  was  owned 
by  any  decedent  domiciled  within  the  state  at  the  time  of  the  death  of  such 
decedent,  even  though  the  property  of  said  decedent  so  domiciled  was  situated 
outside  of  the  state.  (Laws  1901,  p.  68;  2  Kem.  &  Bal.  Codes  &  Stats.,  p. 
2083.) 

§  1307.    Property  Belonging  to  Foreign  Estate. 

See.  9185.  In  case  of  any  property  belonging  to  a  foreign  estate,  which 
estate,  in  whole  or  in  part,  is  liable  to  pay  a  collateral  inheritance  tax  in 
this  state,  the  said  tax  shall  be  assessed  upon  the  market  value  of  said  prop- 
erty remaining  after  the  payment  of  such  debts  and  expenses  as  are  charge- 
able to  the  property  under  the  laws  of  this  state.  In  the  event  that  the 
executor,  administrator  or  trustee  of  such  foreign  estate  files  with  the  clerk 
of  the  court  having  ancillary  jurisdiction  and  with  the  state  board  of  tax 
commissioners  duly  certified  statements  exhibiting  the  true  market  value  of 
the  entire  [e]  state  of  the  decedent  owner,  and  the  indebtedness  for  which 
the  said  estate  has  been  adjudged  liable,  which  statements  shall  be  duly 
attested  by  the  judge  of  the  court  having  original  jurisdiction,  the  beneficiaries 
of  said  estate  shall  then  be  entitled  to  have  deducted  such  proportion  of  the 


WASHINGTON  STATUTE.  741 

said  indebtedness  of  the  decedent  from  the  value  of  the  property,  as  the 
value  of  the  property  within  this  state  bears  to  the  value  of  the  entire  estate. 
(Laws  1901,  p.  69;  Laws  1907,  p.  501;  2  Rem.  &  Bal.  Codes  &  Stats.,  p.  2083.) 

Section  5  of  the  Laws  of  1901  was  repealed  by  Laws  of  1907,  page  504. 

§  1308.    Appraiseme'nt  of  Property  and  Collection  of  Tax. 

Sec.  9186.  All  the  real  estate  of  the  decedent  subject  to  such  tax  shall, 
except  as  hereinafter  provided,  be  appraised  within  the  time  provided  by  law 
for  the  appraisement  of  decedents'  estates,  and  the  tax  thereon,  calculated 
upon  the  appraised  value  after  deducting  debts  for  which  the  estate  is  liable, 
shall  be  paid  by  the  person  entitled  to  said  estate  within  fifteen  months  from 
the  approval  by  the  court  of  such  appraisement,  unless  a  longer  period  is 
fixed  by  the  court,  and  in  default  thereof  the  court  may  order  the  same,  or  so 
much  thereof  as  may  be  necessary  to  pay  such  tax,  to  be  sold.  (Laws  1901, 
p.  70;  2  Eem.  &  Bal.  Codes  &  Stats.,  p.  2083.) 

§  1309.    Estates  for  Life  and  Remainder  in  Favor  of  Lineal  Descendant. 

Sec.  9187.  When  any  person  shall  devise  any  real  property  to  or  for  the 
use  of  the  father,  mother,  husband,  wife,  lineal  descendant,  adopted  child, 
or  lineal  descendant  of  such  child,  during  life  or  for  a  term  of  years,  and 
the  remainder  to  a  collateral  heir  or  to  a  stranger  to  the  blood,  the  court, 
upon  the  determination  of  such  estate  for  life  or  years,  shall  upon  its  own 
motion  or  upon  the  application  of  the  state  board  of  tax  commissioners,  cause 
such  estate  to  be  appraised  at  its  then  actual  market  value  from  which  shall 
be  deducted  the  value  of  any  improvements  thereon  or  betterments  thereto, 
made  by  the  remainderman  during  the  time  of  the  prior  estate,  to  be  ascer- 
tained and  determined  by  the  appraiser  and  the  tax  on  the  remainder  shall 
be  paid  by  such  remainderman  within  six  months  from  the  approval  of  the 
court  of  the  report  of  the  appraisers.  If  such  tax  is  not  paid  within  said 
time,  the  court  may  then  order  said  real  estate,  or  so  much  thereof  as  may 
be  necessary  to  pay  said  tax,  to  be  sold.  (Laws  1901,  p.  70;  Laws  1907,  p. 
501;  2  Eem.  &  BaJ.  Codes  &  Stats.,  p.  2084.) 

§  1310.     Estate  for  Life  in  Favor  of  Collateral  Relatives. 

Sec.  9188.  Whenever  any  real  estate  of  a  decedent  shall  be  subject  to  such 
tax,  and  there  be  a  life  estate  or  interest  for  a  term  of  years  given  to  a  party 
other  than  the  father,  mother,  husband,  wife,  lineal  descendant,  adopted  child, 
or  lineal  descendant  of  such  child,  and  the  remainder  to  a  collateral  heir  or 
stranger  to  the  blood,  the  court  shall  direct  the  interest  of  the  life  estate  or 
term  of  years  to  be  appraised  at  the  actual  value  thereof  according  to  the 
rules  or  standards  of  mortality  and  of  value  commonly  used  in  actuaries'  com- 
bined experience  tables.  The  state  treasurer  is  directed  to  obtain  and  publish 
for  the  use  of  the  courts  and  appraisers  throughout  the  state,  tables  showing 
the  average  expectancy  of  life,  and  the  value  of  annuities  or  life  and  term 
estates,  and  the  present  worth  or  value  of  remainders  and  reversions.  The 
taxable  value  of  life,  term,  deferred  or  future  estates,  shall  be  computed  at 
the  rate  of  four  per  cent  per  annum  interest.  Whenever  it  is  desired  to  remove 


742  INHERITANCE   TAXATION. 

the  lien  of  the  inheritance  tax  on  remainders,  reversions  or  deferred  estates, 
parties  owning  the  beneficial  interest  may  pay  at  any  time  the  said  tax  on 
the  present  worth  of  such  interest  determined  according  to  the  rules  herein 
fixed.  Upon  the  approval  of  such  appraisement  by  the  court,  the  party  en- 
titled to  such  life  estate  or  term  of  years,  shall,  within  sixty  days  thereafter 
pay  the  tax  on  such  life  or  term  estate,  and  in  default  thereof  the  court  may 
order  such  interest  in  such  estate  or  so  much  thereof  as  shall  be  necessary 
to  pay  such  tax,  to  be  sold.  Upon  the  determination  of  such  life  estate  or 
term  of  years,  unless  the  tax  on  the  remainder  shall  have  been  previously 
paid,  as  provided  in  this  section,  the  same  provision  shall  apply  as  to  the  ascer- 
tainment of  the  amount  of  the  tax  and  the  collection  of  the  same  on  the  real 
estate  in  remainder  as  in  like  cases  is  provided  in  the  preceding  section. 
Whenever  any  personal  estate  of  a  decedent  shall  be  subjectto  such  tax,  and 
there  be  a  life  estate  or  'interest  for  a  term  of  years  given,  the  court  shall 
inquire  into  and  determine  the  value  of  the  life  estate  or  interest  for  the  term 
of  years,  and  order  and  direct  the  amount  of  the  tax  thereon,  to  be  paid  by 
the  prior  estate,  and  that  to  be  paid  by  the  remainderman,  each  of  whom 
shall  pay  their  proportion  of  such  tax  within  six  months  from  such  determina- 
tion, unless  a  longer  period  is  fixed  by  the  court,  and  in  default  thereof  the 
executor,  administrator  or  trustee  shall  pay  the  tax  out  of  said  property,  as 
the  court  may  direct.  (Laws  1901,  p.  70;  2  Bern.  &  Bal.  Codes  &  Stats., 
p.  2084.) 

§  1311.    Bequest  to  Executor  in  Lieu  of  Commissions. 

Sec.  9189.  Whenever  a  decedent  appoints  one  or  more  executors  or  trustees 
and  in  lieu  of  their  allowance  or  commission,  makes  a  bequest  or  devise  of 
property  to  them  which  would  otherwise  be  liable  to  said  tax,  or  appoints  them 
his  residuary  legatees,  and  said  bequests,  devises,  or  residuary  legacies  exceed 
what  would  be  a  reasonable  compensation  for  their  services,  such  excess  shall 
be  liable  to  such  tax,  and  tne  court  having  jurisdiction  of  their  accounts,  upon 
its  own  motion,  or  on  the  application  of  the  state  board  of  tax  commissioners, 
shall  fix  such  compensation.  (Laws  1901,  p.  72;  Laws  1907,  p.  502;  2  Rem. 
&  Bal.  Codes  &  Stats.,  p.  2085.) 

§  1312.    Legacy  Charged  upon  Real  Estate. 

Sec.  9190.  Whenever  any  legacies  subject  to  said  tax  are  charged  upon  or 
payable  out  of  any  real  estate,  the  heir  or  devisee,  before  paying  the  legacies, 
shall  deduct  said  tax  therefrom  and  pay  it  to  the  executor,  administrator, 
trustee  or  state  treasurer,  and  the  same  shall  remain  a  charge  and  be  a  lien 
upon  said  real  estate  until  it  is  paid;  and  payment  thereof  shall  be  enforced 
by  the  executor,  administrator,  trustee  or  state  board  of  tax  commissioners, 
in  the  same  manner  as  the  payment  of  the  legacy  itself  could  be  enforced. 
(Laws  1901,  p.  72;  Laws  1907,  p.  502;  2  Bern.  &  Bal.  Codes  &  Stats.,  p.  2085.) 

§  1313.     Collection  of  Tax  by  Executor. 

Sec.  9191.  Every  executor,  administrator  or  trustee  having  in  charge  or 
trust  any  property  subject  to  said  tax,  and  which  is  made  payable  by  him, 
shall  deduct  the  tax  therefrom,  or  shall  collect  the  tax  thereon  from  the  lega- 


WASHINGTON  STATUTE.  743 

tee  or  person  entitled  to  said  property,  and  he  shall  not  deliver  any  specific 
legacy  or  property  subject  to  said  tax  to  any  person  until  he  has  collected 
the  tax  thereon.  (Laws  1901,  p.  72;  2  Bern.  &  Bal.  Codes  &  Stats.,  p.  2085.) 

§  1314.    Payment  to  State   Treasurer — Receipts — Interest. 

Sec.  9192.  All  taxes  imposed  by  this  chapter  shall  be  payable  to  the  state 
treasurer,  who  shall  issue  his  receipt  therefor  in  duplicate,  one  of  which  shall 
be  filed  with  the  state  board  of  tax  commissioners,  and  those  taxes  which 
are  made  payable  by  executors,  administrators  or  trustees,  shall  be  paid  within 
fifteen  months  from  the  death  of  the  testator  or  intestate,  or  within  fifteen 
months  from  assuming  the  trust  by  such  trustee,  unless  a  longer  period  is 
fixed  by  the  court.  All  taxes  not  paid'  within  the  time  prescribed  in  this  section 
shall  draw  interest  at  the  legal  rate  until  paid.  (Laws  1901,  p.  72;  Laws  1907, 
p.  502;  2  Bern.  &  Bal.  Codes  &  Stats.,  p.  2085.) 

§  1315.    Appraisers  and  Appraisement. 

Sec.  9193.  The  superior  court,  having  jurisdiction,  shall  appoint  three  suit- 
able, disinterested  persons  to  appraise  the  estate  and  effects  of  deceased  per- 
sons for  inheritance  tax  purposes,  and  unless  otherwise  provided  by  order  of 
the  court,  the  appraisers  appointed  under  the  probate  law  to  appraise  the 
estate  and  effects  of  deceased  persons,  shall  be  and  constitute  the  appraisers 
under  the  provisions  of  this  chapter.  It  shall  be  the  duty  of  all  such  ap- 
praisers to  forthwith  give  notice  to  the  state  board  of  tax  commissioners,  of 
the  time  and  place  at  which  they  will  appraise  such  property,  which  time  shall 
not  be  less  than  twenty  days  from  the  date  of  such  notice.  The  notice  shall 
be  served  in  the  same  manner  as  is  prescribed  for  the  commencement  of 
civil  actions,  unless  a  different  one  is  ordered  by  the  court  or  judge,  and  the 
notice,  with  the  proof  of  the  service  thereof,  shall  be  returned  to  the  court 
with  the  appraisement.  The  state  board  of  tax  commissioners  or  any  person 
interested  in  the  estate  appraised,  may  file  exceptions  to  the  appraisement, 
which  shall  be  heard  and  determined  by  the  court  having  jurisdiction  in  pro- 
bate of  the  estate  involved.  If,  upon  the  hearing,  the  court  finds  the  amount 
at  which  the  property  is  appraised  is  its  market  value  and  the  appraisement 
was  fairly  and  in  good  faith  made,  it  shall  approve  such  appraisement;  but 
if  it  finds  that  the  appraisement  was  made  at  a  greater  or  less  sum  than  the 
market  value  of  the  property,  or  that  the  same  was  not  fairly  or  in  good  faith 
made,  it  shall  set  aside  the  appraisement  and  determine  such  value.  The  state 
board  of  tax  commissioners,  or  anyone  interested  in  the  property  appraised, 
may  appeal  to  the  supreme  court  from  the  order  of  the  superior  court  in  the 
premises.  (Laws  1901,  p.  73;  Laws  1905,  p.  222;  Laws  1907,  p.  504;  2  Bern. 
&  Bal.  Codes  &  Stats.,  p.  2086.) 

§  1316.     Transfer  of   Stock  or  Obligations  by  Foreign  Executor. 

Sec.  9194.  If  a  foreign  executor,  administrator  or  trustee  shall  assign  any 
corporate  stock  or  obligations  in  this  state  standing  in  the  name  of  a  decedent, 
or  in  trust  for  a  decedent,  liable  to  such  tax,  the  tax  shall  be  paid  to  the 
state  treasurer  on  or  before  the  transfer  thereof,  otherwise,  the  corporation 
permitting  its  stock  to  be  so  transferred  on  its  books  shall  be  liable  to  pay 


744  INHERITANCE   TAXATION. 

such  tax.  No  safe  deposit  company,  bank  or  other  institution,  person  or  per- 
sons, holding  any  securities,  property  or  assets  of  any  nonresident  decedent, 
shall  deliver  or  transfer  the  same  to  any  nonresident  executor,  administrator 
or  representative  of  such  decedent,  until  after  a  notice  in  writing  of  the 
time  and  place  of  such  transfer  shall  have  been  duly  given  the  state  board 
of  tax  commissioners  at  least  ten  (10)  days  prior  thereto,  and  the  tax  im- 
posed by  this  chapter  paid  thereon,  and  every  such  safe  deposit  company,  bank 
or  other  institution,  person  or  persons,  shall  be  liable  for  the  payment  of  such 
tax.  (Laws  1901,  p.  73;  Laws  1907,  p.  503;  2  Kern.  &  Bal.  Codes  &  Stats., 
p.  2086.) 

§  1317.     Statement  of  Character  of  Property  and  Names  of  Heirs. 

Sec.  9195.  Upon  the  filing  of  any  petition  for  letters  of  administration  or 
for  the  probate  of  any  will,  it  shall  be  the  duty  of  the  petitioner  to  furnish 
the  clerk  of  the  court  with  a  list  of  the  heirs,  legatees  or  devisees  of  the  estate, 
and  the  relationship  which  each  bears  to  the  decedent,  together  with  a  state- 
ment of  the  location,  nature  and  probable  value  of  the  entire  estate,  and  an 
estimate  of  the  amount  or  value  of  -each  distributive  share.  The  clerk  of 
the  court  shall  immediately  forward  a  true  copy  of  such  list  to  the  state  board 
of  tax  commissioners,  also  notifying  said  board  of  the  date  of  such  filing,  to- 
gether with  the  name,  and,  if  known,  the  place  of  residence  of  the  deceased, 
the  name,  and,  if  known,,  the  place  of  residence  of  the  petitioner,  and,  if  known, 
the  name  and  place  of  residence  of  the  attorney  for  petitioner,  such  list  and 
notice  to  be  in  such  form  as  the  state  board  of  tax  commissioners  may  pre- 
scribe. (Laws  1901,  p.  73;  Laws  1905,  p.  223;  Laws  1907,  p.  505;  2  Rem.  & 
Bal.  Codes  &  Stats.,  p.  2086.) 

§  1318.    Extension  of  Time  for  Filing  Appraisement. 

Sec.  9196.  Whenever  by  reason  of  the  complicated  nature  of  an  estate, 
or  by  reason  of  the  confused  condition  of  the  decedent's  affairs,  it  is  [im- 
practicable] for  the  executor,  administrator,  trustee  or  beneficiary  of  said  es- 
tate to  file  with  the  clerk  of  the  court  a  full,  complete  and  itemized  inventory  of 
the  personal  assets  belonging  to  the  estate,  within  the  time  required  by  stat- 
ute for  filing  inventories  of  the  estates,  the  court  may,  upon  the  application 
of  such  representatives  or  parties  in  interest,  extend  the  time  for  the  filing 
of  the  appraisement  for  a  period  not  to  exceed  three  months  beyond  the  time 
fixed  by  law.  (Laws  1901,  p.  74;  2  Bern.  &  Bal.  Codes  &  Stats.,  p.  2087.) 

§  1319.    Compromise  by  Tax  Commissioners. 

Sec.  9197.  Whenever  an  estate  charged,  or  sought  to  be  charged  with  the 
inheritance  tax,  is  of  such  a  nature,  or  is  so  disposed,  that  the  liability  of  the 
estate  is  doubtful,  or  the  value  thereof  cannot,  with  reasonable  certainty,  be 
ascertained  under  the  provisions  of  law,  the  state  board  of  tax  commissioners 
may  compromise  with  the  beneficiaries  or  representatives  of  such  estates,  and 
compound  the  tax  thereon;  but  said  settlement  must  be  approved  by  the  supe- 
rior court  having  jurisdiction  of  the  estate,  and  after  such  approval,  the  pay- 
ment of  the  amount  of  the  taxes  so  agreed  upon  shall  discharge  the  lien  against 
the  property  of  the  estate.  (Laws  1901,  p.  74;  Laws  1907,  p.  503;  2  Bern.  & 
Bal.  Codes  &  Stats.,  p,  2087.) 


WASHINGTON  STATUTE.  745 

§  1320.     Powers  and  Duties  of  Tax  Commissioners. 

Sec.  9198.  Administrators,  executors  and  trustees  of  the  estates  subject 
to  the  inheritance  tax  shall,  when  demanded  by  the  state  board  of  tax  commis- 
sioners, send  such  board  certified  copies  of  such  parts  of  their  reports  as  may 
be  demanded  by  it  or  any  member  thereof,  and  upon  refusal  of  said  parties 
to  comply  with  such  demand,  it  is  the  duty  of  the  clerk  of  the  court  to  furnish 
such  copies,  and  the  expense  of  making  the  same  shall  be  charged  against  the 
estate  as  are  other  costs  in  probate.  And  it  shall  be  the  duty  of  the  state 
board  of  tax  commissioners  to  exercise  general  supervision  of  the  collection  of 
the  inheritance  taxes  provided  in  this  chapter,  and  in  the  discharge  of  such 
duty  the  state  board  of  tax  commissioners,  or  any  member  thereof,  may  insti- 
tute and  prosecute  such  suits  or  proceedings  in  the  courts  of  the  state  as  may 
be  necessary  and  proper,  appearing  therein  for  such  purpose;  and  it  shall  be 
the  duty  of  the  several  county  attorneys  to  render  assistance  therein  when  called 
upon  by  such  board  so  to  do.  The  said  board  shall  keep  a  record  in  which 
shall  be  entered  memoranda  of  all  the  proceedings  had  in  each  case,  and 
shall  also  keep  an  itemized  account  showing  the  amount  of  such  taxes  collected, 
in  detail,  charging  the  state  treasurer  therewith.  (Laws  1901,  p.  74  j  Laws 
1907,  p.  503;  2  Rem.  &  Bal.  Codes  &  Stats.,  p.  2087.) 

§  1321.     Exemptions  of  Charitable  Institutions. 

Sec.  9199.  All  bequests  and  devises  of  property  within  this  state  when  the 
same  is  for  one  of  the  following  charitable  purposes,  namely:  The  relief  of 
aged,  impotent  [indigent]  and  poor  people;  maintenance  of  the  sick  or  maimed 
or  the  support  or  education  of  orphans  or  indigent  children  shall  be  exempt 
from  the  payment  of  any  tax  or  sum  under  any  inheritance  tax  law;  and  any 
property  in  this  state  which  has  been  devised  or  bequeathed  for  such  charitable 
purposes,  and  upon  which  a  state  inheritance  tax  is  claimed  or  is  owing,  is 
hereby  declared  to  be  exempt  from  the  payment  of  such  tax,  and  the  same 
is  hereby  remitted.  (Law*  1905,  p.  1&9;  2  Bern.  &  Bal.  Codeg  &  Stats.,  p. 
2088.) 


746  INHERITANCE  TAXATION. 


CHAPTER  LVIII. 
WEST  VIRGINIA  STATUTE. 

(Code  of  1906,  pp.  489-499;  Code  Supplement  of  1909,  pp.  S06-S10.) 

§  1322.  Transfers  Subject  to  Tax. 

§  1323.  Rates  of  Taxation  in  Certain  Cases. 

i  1324.  Rates  of  Taxation  in  Other  Cases. 

S  1325.  Exemptions  from  Tax. 

§  1326.  Determination  of  Market  Value  of  Property. 

§  1327.  Bequests  to  Executor  in  Payment  of  Debt  or  in  Lieu  of  Compensa- 
tion. 

§  1328.  Estates  for  Years  or  for  Life — Remainder  and  Contingent  Interests. 

§  1329.  Situs  of  Personal  Property. 

§  1330.  Lien  of  Tax. 

§  1331.  Suspension  of  Payment  of  Tax. 

§  1332.  Interest  on  Tax. 

§  1333.  Payment  of  Tax. 

§  1334.  Transfer  of  Stocks  or  Securities  by  Foreign  Executor. 

§  1335.  Duty  of  County  Clerk  or  Court  to  Report  Transfers. 

§  1336.  Statement  by  Executor  of  Transfers  Subject  to  Tax. 

§  1337.  Ascertainment  by  Tax  Commissioner  of  Taxable  Transfers — Cer- 
tificates. 

§  1338.  Failure  to  Report  Transfers  to  Tax  Commissioner — Proceedings. 

§  1339.  Recording  Certificates  of  Tax  Commissioner. 

§  1340.  Assessment  of  Tax  by  Commissioner. 

§  1341.  Payment  of  Tax  into  Treasury — Certificate  of  Payment. 

§  1342.  Enforcement  of  Tax. 

§  1343.  Appeals  from  Assessment. 

§  1344.  Fees  of  Clerk  of  County  Court. 

§  1345.  Account  of  Fiduciaries  not  Allowed  Without  Certificate  of  Tax 
Commissioner. 

§  1346.  Compromise  by  Tax  Commissioner. 

§  1347.  Liability  of  Fiduciaries  and  Sureties. 

§  1348.  Penalty  for  Failure  to  Discharge  Duties. 

§  1349.  Inspection  of  Books  by  Tax  Commissioner. 

§  1322.     Transfers  Subject  to  Tax. 

Sec.  1.  A  tax,  payable  into  the  treasury  of  the  state,  shall  be  imposed 
upon  the  transfer,  in  trust  or  otherwise,  of  any  property,  or  interest  therein, 
real[,]  personal  or  mixed,  if  such  transfer  be: 

(a)  By  will  or  by  the  laws  of  this  state  regulating  descents  and  distribu- 
tions,  from  any  person  who  is  a  resident  of  the  state  at  the  time  of  his 
death  and  who  shall  die  seised  or  possessed  of  the  property. 

(b)  By  will  or  by  laws  regulating  descents  and  distributions,  of  property 
within  the  state,  or  within  its  jurisdiction,  and  the  decedent  was  a  non- 
resident of  the  state  at  the  time  of  Ma  death. 


WEST   VIRGINIA   STATUTE.  747 

(c)  By  a  resident,  or  be  of  property  within  the  state,  or  within  its  juris- 
diction, by  a  nonresident,  by  deed,  grant,  bargain,  sale  or  gift  made  in 
contemplation  of  the  death  of  the  grantor,  vendor,  bargainer  or  donor,  or 
intended  to  take  effect  in  possession  or  enjoyment  at  or  after  suqh  death. 

(d)  If  any  person  shall  transfer  any  property  which  he  owns  or  shall 
cause  any  property,  to  which  he  is  absolutely  entitled,  to  be  transferred  to, 
or  vested  in,  himself  and  any  other  person  jointly,  so  that  the  title  therein, 
or  in  some  part  thereof,  vests  no  survivorship  in  such  other  person,  a  transfer 
shall  be  deemed  to  occur  and  to  be  taxable  under  the  provisions  of  this  act 
upon  the  vesting  of  such  title. 

(e)  Whenever  a  person  shall  exercise  by  will  a  power  of  appointment 
derived   from   any  disposition   of   property,   such   appointment,  when   made, 
shall  be  deemed  a  transfer  taxabla  under  the  provision  hereof.     (Code  1906, 
p.  489;  Code  Supp.  1909,  p.  207.) 

§  1323.    Bates  of  Taxation  in  Certain  Cases. 

Sec.  2.  When  the  property  or  any  beneficial  interest  therein  passes  by 
any  such  transfer  where  the  amount  of  the  property  shall  exceed  in  value 
the  exemption  hereinafter  specified,  and  shall  not  exceed  in  value  twenty- 
five  thousand  dollars,  the  tax  hereby  imposed  shall  be: 

(a)  Where  the  person   or  persons  entitled  to  any  beneficial  interest  in 
such  property  shall  be  the  wife,  husband,  child,  lineal  descendant  or  lineal 
ancestor  of  the  decedent,  at  the  rate  of  one  per  centum  of  the  market  value 
of  such  interest  in  such  property. 

(b)  Where  the  person  or  persons  entitled  to  any  beneficial  interest  in 
such  property  shall  be  the  brother  or  sister  of  the  decedent  (and  term  brother 
or  sister  shall  not  include  a  brother  or  sister  of  the  half  blood),  at  the  rate 
of  three  per  centum  of  the  market  value  of  such  interest  in  such  property. 

(c)  Where  the  person  or  persons  entitled  to  any  beneficial  interest  in  such 
property  shall  be  further  removed  in  relationship  from  the  decedent  than 
wife,  husband,  child,  lineal  descendant,  lineal  ancestor,  brother  or  sister, 
at  the  rate  of  five  per  centum  of  the  market  value  of  such  interest  in  such 
property.     (Code  1906,  p.  490;  Code  Supp.  1909,  p.  208.) 

§  1324.    Bates  of  Taxation  in  Other  Cases. 

Sec.  2a.  The  foregoing  rates  in  section  two  are  for  convenience  termed 
the  primary  rate.  When  the  amount  of  the  market  value  of  such  property 
or  interest  exceeds  twenty-five  thousand  dollars,  the  rate  upon  such  excess 
shall  be  as  follows: 

(a)  Upon  all  in  excess  of  twenty-five  thousand  dollars  up  to  fifty  thousand 
dollars  one  and  one-half  times  the  primary  rates. 

(b)  Upon  all  in  excess  of  fifty  thousand  dollars  and  up  to  one  hundred 
thousand  dollars,  two  times  the  primary  rates. 

(c)  Upon  all  in  excess  of  one  hundred  thousand  dollars  and  up  to  five 
hundred  thousand  dollars,  two  and  one-half  times  the  primary  rates. 

(d)  Upon  all  in  excess  of  five  hundred  thousand  dollars,  three  times  the 
primary  rates.     (Code  Supp.  1909,  p.  208.) 


743  INHERITANCE  TAXATION. 

§  1325.    Exemptions  from  Tax. 
Sec.  2b.     The  following  exemptions  from  the  tax  are  hereby  allowed: 

(a)  All  property  transferred  to  a  person  or  corporation  in  trust  or  use 
solely  for  education,  literary,  scientific,  religious  or  charitable  purposes,  or 
to  the  state  or  any  county  or  municipal  corporation  thereof  for  public  pur- 
poses; provided  the  property  so  transferred  is  used  for  the  purposes  herein 
mentioned  in  this  state,  shall  be  exempt. 

(b)  Property  of  the  market  value  of  fifteen  thousand  dollars  transferred 
to  the  widow  of  the  decedent,  and   ten  thousand  dollars  transferred  to  each 
of  the  other  persons  described  in  subdivision  (a)   of  section  two  shall  be 
exempt.     (Code  Supp.  1909,  p.  209.) 

§  1326.    Determination  of  Market  Value  of  Property. 

Sec.  3.  The  market  value  of  property  is  its  actual  market  value  after 
deducting  debts  and  encumbrances  for  which  the  same  is  liable,  and  to  the 
payment  of  which  it  shall  actually  be  subjected.  In  fixing  such  market 
value,  allowances  shall  not  be  made  for  debts  incurred  by  the  decedent,  or 
encumbrances  made  by  him,  unless  such  debts  or  encumbrances  were  in- 
curred or  created  in  good  faith  for  an  adequate  consideration,  nor  for  any 
debt  in  respect  whereof  there  is  a  right  to  reimbursement  from  any  other 
estate  or  person,  unless  such  reimbursement  from  any  other  estate  or  person 
cannot  be  obtained.  (Code  1906,  p.  490.) 

§  1327.    Bequests  to  Executor  in  Payment  of  Debt  or  in  Lieu  of  Compensa- 
tion. 

Sec.  4.  Every  devise  or  bequest  ostensibly  in  payment  of  a  debt  of  the 
testator  shall  be  taxable  upon  the  excess  in  value  of  the  property  devised 
or  bequeathed,  otherwise  liable  to  such  tax,  over  and  above  the  true  amount 
of  such  debt.  Every  devise  or  bequest  to  an  executor  or  trustee,  purporting 
to  be  in  compensation  for  services,  shall  be  taxable  upon  so  much  of  the 
value  of  the  property  devised  or  bequeathed,  otherwise  liable  to  such  tax, 
as  is  in  excess  of  a  reasonable  compensation  for  such  services.  (Code  1906, 
p.  491.) 

§  1328.  Estates  for  Years  or  for  Life — Remainder  and  Contingent  Interests. 
Sec.  5.  Whenever  the  transfer  of  any  property  shall  be  subject  to  tax 
hereunder  and  only  a  life  estate,  or  an  interest  for  a  term  of  years,  or  a 
contingent  interest  to  be  transferred  to  one  person  and  the  remainder  or 
reversionary  interest  to  another,  the  state  tax  commissioner  on  the  applica- 
tion of  any  person  in  interest,  or  upon  his  own  motion,  may,  after  due 
notice  to  the  persons  interested,  apportion  such  taxes  among  such  persona 
and  assess  to  each  of  them  his  proper  share  of  such  taxes,  and  shall  make 
his  certificates  accordingly,  which  shall  be  forwarded  and  disposed  of  in 
the  same  manner  as  other  certificates  by  him  herein  provided  for.  The 
portion  of  any  such  taxes  apportioned  to  any  person  entitled  in  remainder 
or  reversion  shall  be  payable  at  once,  and  such  person  shall  be  required  to 
pay  them  in  the  same  manner,  and  within  the  same  time,  as  if  his  interest 
had  vested  in  possession.  (Code  1906,  p.  491.) 


WEST   VIRGINIA    STATUTE.  749 

§  1329.     Situs  of  Personal  Property. 

Sec.  6.  A  transfer  of  personal  property  of  a  resident  of  the  state  which 
is  not  therein  or  within  the  jurisdiction  thereof,  at  the  time  of  his  death, 
shall  not  be  taxable,  under  the  provisions  of  this  act  if  such  transfer  or  the 
property  be  legally  subject  in  another  state  or  country  to  a  tax  of  a  like 
character  and  amount  to  that  hereby  imposed,  and  if  such  tax  be  actually 
paid  or  guaranteed  or  secured,  in  accordance  with  law  in  such  other  state 
or  country;  if  legally  subject  in  another  state  or  country  to  a  tax  of  like 
character,  but  of  less  amount  than  that  hereby  imposed,  and  such  tax  be 
actually  paid,  or  guaranteed  or  secured,  as  aforesaid,  the  transfer  of  such 
property  shall  be  taxable  under  this  act  to  the  extent  of  the  difference 
between  the  tax  thus  actually  paid,  guaranteed  or  secured,  and  the  amount 
for  which  such  transfer  would  otherwise  be  liable  hereunder,  or  within  the 
jurisdiction  thereof. 

The  provisions  of  this  act  shall  apply  to  the  following  property  belonging 
to  deceased  persons,  nonresidents  of  this  state,  which  shall  pass  by  will  or 
inheritance  under  the  law  of  any  other  state  or  country,  and  such  property 
shall  be  subject  to  the  tax  prescribed  in  this  section: 

All  real  estate  and  tangible  personal  property,  including  money  on  deposit 
within  this  state;  all  intangible  personal  property,  including  bonds,  securi- 
ties, shares  of  stock  and  choses  in  action  the  evidence  of  ownership  to  which 
shall  be  actually  within  this  state;  shares  of  the  capital  stock  or  bonds  of  all 
corporations  organized  and  existing  under  the  laws  of  this  state,  the  cer- 
tificate of  which  stocks  or  bonds  shall  be  within  this  state,  where  the  laws 
of  the  state  or  country  where  such  decedent  resides,  shall,  at  the  time  of 
his  death  impose  a  succession,  inheritance,  transfer,  or  similar  tax  upon 
the  shares  of  the  capital  stock  or  bond  of  all  corporations  organized  or 
existing  under  the  laws  of  such  state  or  country,  held  under  such  conditions 
at  their  decease  by  residents  of  this  state.  (Code  1906,  p.  491;  Code  Supp. 
1909,  p.  209.) 

§  1330.    Lien  of  Tax. 

Sec.  7.  All  such  taxes  upon  any  transfer,  and  the  interest  that  may 
accrue  on  such  transfer  shall,  until  paid,  be  and  remain  a  charge  and  lien 
upon  the  property  transferred,  superior  to  any  lien  created  after  such 
transfer,  and  no  title  shall  vest  or  be  transferred  as  to  any  such  property, 
except  subject  to  the  lien  for  such  taxes,  and  no  such  property  shall  be 
paid,  transferred  or  delivered,  in  whole  or  in  part,  until  the  payment  into 
the  treasury  of  the  state  cf  the  amount  of  such  tax  as  by  the  certificate 
of  the  state  tax  commissioner  may  be  shown  to  have  been  assessed,  as 
hereinafter  provided.  The  person  to  whom  the  .property  is  transferred,  if 
he  shall  receive  the  same  before  the  tax  thcreon'is  paid,  and  the  executors, 
administrators  and  trustees  having  charge  of  every  estate  so  transferred, 
shall  be  personally  liable  for  such  tax  and  interest  until  its  payment,  and 
no  statute  of  limitations  shall  be  a  defense  to  an  action  for  the  recovery 
thereof.  (Code  1906,  p.  492.) 


750  INHERITANCE   TAXATION. 

§  1331.    Suspension  of  Payment  of  Tax. 

Sec.  8.  Whenever  it  shall  b«  necessary  in  the  settlement  of  any  estate 
to  retain  property  or  funds  for  the  purpose  of  paying  any  liability,  the 
amount  or  validity  of  which  is  not  determined,  the  payment  of  the  whole  or 
a  proportionate  part  of  the  tax  may  be  suspended  to  await  the  disposition 
of  such  claim.  (Code  1906,  p.  492.) 

§  1332.    Interest  on  Tax. 

Sec.  9.  In  the  case  of  such  a  suspension  the  tax  shall  be  payable  when 
the  time  of  the  suspension  expires.  In  all  other  cases  the  tax  shall  be 
payable  as  soon  as  the  amount  thereof  is  assessed  by  the  state  tax  com- 
missioner, as  herein  provided.  Interest  shall  be  charged  and  collected  upon 
all  taxes  imposed  by  this  act  from  the  time  when  the  same  become  payable, 
at  the  rate  of  four  per  cent  per  annum.  (Code  1906,  p.  492.) 

§  1333.    Payment  of  Tax. 

fciec,  10.  Every  executor,  administrator,  trustee,  guardian,  committee  or 
other  fiduciary  having  charge  of  an  estate,  any  part  of  which  is  subject 
to  such  tax,  and  every  person  to  whom  the  property  is  transferred  which 
is  subject  to  such  tax,  but  is  not  in  charge  of  any  such  fiduciary,  shall  pay 
the  same  upon  the  market  value  of  all  the  property  subject  to  tax,  whether 
there  are  or  are  not  devises  or  bequests  of  successive  interests  in  the  same 
property,  and  whether  such  successive  interests,  if  any,  are  defeasible  or 
indefeasible,  absolute  or  contingent.  Such  payment  shall  be  made  out  of 
said  estate  in  the  same  manner  a»  other  debts  may  be  paid.  Any  such 
fiduciary  may  sell  personal  property  for  that  purpose  when  necessary,  and 
the  circuit  court  may  authorize  him  to  sell  real  estate  for  the  payment 
thereof  in  the  same  manner  as  it  may  authorize  the  sale  of  real  estate 
for  the  payment  of  debts.  (Code  1906,  p.  493.) 

§  1334.     Transfer  of  Stocks  or  Securities  by  Foreign  Executor. 

Sec.  11.  Whenever  any  foreign  executor,  administrator  or  trustee  shall 
assign  or  transfer  in  this  gtate  any  stock,  bond  or  other  security  liable 
to  any  such  tax,  standing  in  the  name  of,  or  in  trust  for  a  decedent,  he 
shall  have  the  tax  assessed  on  such  transfer  by  the  state  tax  commissioner, 
and  shall  pay  the  tax  into  the  state  treasury  on  the  transfer  thereof;  other- 
wise any  person  having  authority  to  make  or  permit  such  transfer,  who 
shall  make  or  permit  it,  shall  be  liable  to  pay  the  tax  if  he  then  had  knowl- 
edge, or  reasonable  cause  to  believe,  that  the  property  was  liable  to  tax. 
(Code  1906,  p.  493.) 

§  1335.    Duty  of  County  Clerk  or  Court  to  Eeport  Transfers. 

Sec.  12.  Whenever  the  county  court  or  any  county,  or  the  clerk  thereof, 
shall  have  reason  to  believe  that  a  transfer  subject  to  taxation  hereunder 
has  been  made,  whether  such  'belief  be  based  on  any  application  for  the 
probate  of  a  will,  the  appointment  of  any  fiduciary,  or  the  admission  to 
record  of  a  deed  or  other  writing  intended  to  take  effect  in  possession  or 
enjoyment,  at  or  after  the  death  of  the  maker  thereof,  or  appearing  to  be 


WEST   VIRGINIA    STATUTE.  751 

in  contemplation  of  his  death,  or  be  based  on  any  information  otherwise 
derived,  such  clerk  shall  report  the  same  to  the  state  tax  commissioner. 
Such  a  report  shall  be  made  quarterly  as  soon  as  possible  after  the  first  day 
of  January,  April,  July  and  October  in  each  year,  and  shall  relate  to  all 
such  matters  as  were  not  covered  by  any  previous  reports.  A  special  report 
may  be  made  by  the  clerk  at  any  time.  If  there  be  no  reason  to  believe 
that  any  such  transfer  has  been  made  since  the  date  of  the  last  preceding 
report,  that  fact  shall  be  stated  in  such  quarterly  report,  but  if  there  be 
reason  to  believe  that  such  a  transfer  has  been  made,  such  quarterly  or 
special  report  shall  show  the  nature  thereof;  the  name  of  the  decedent, 
devisor,  grantor,  vendor,  bargainer  or  donor;  the  name  or  other  descrip- 
tion, and  the  address  of  the  person  or  corporation  to  or  for  whose  use  or 
benefit  any  property  may  be  transferred,  and  the  relationship,  if  any,  be- 
tween such  person  and  the  person  from  whom  the  property  is  transferred, 
as  far  as  the  court  or  clerk  may  have  any  information  respecting  such 
matters;  the  nature  of  the  property  transferred,  with  such  general  descrip- 
tion and  approximate  valuation  as  the  court  or  clerk  may  be  able  to  give. 
Any  other  person,  whether  interested  in  such  property  or  not,  may  make  a 
like  report  to  the  state  tax  commissioner.  Every  such  report,  whether 
by  the  clerk  or  by  any  other  person,  shall  be  filed  by  the  commissioner,  and 
retained  in  his  office  until  the  tax  be  paid  on  the  transfers  therein  men- 
tioned, or  it  shall  be  ascertained  that  they  are  not  subject  to  tax,  and  shall 
then  be  destroyed;  and  at  all  times  such  report  shall  be  confidential 
and  privileged,  and  its  contents  shall  not  be  inspected  or  made  known  by 
anyone,  except  by  the  state  tax  commissioner  as  to  any  report  made  by  a 
clerk,  when  there  shall  be  a  question  whether  such  clerk  has  complied  with 
the  provisions  of  this  chapter.  (Code  1906,  p.  493.) 

§  1336.     Statement  by  Executor  of  Transfers  Subject  to  Tax. 

Sec.  13.  With  the  inventory  of  every  estate  the  executor,  administrator 
or  trustee  shall  file  a  statement  showing,  to  the  best  of  his  judgment, 
whether  any  transfer  of  any  property  mentioned  in  such  inventory  is 
taxable  hereunder,  and  if  any  be  so  taxable,  setting  forth  the  same  matters 
mentioned  in  the  preceding  section,  with  as  much  accuracy  as  possible; 
and  if  the  estate  be  one,  no  inventory  of  which  is  required  to  be  filed,  such 
•tatement  shall  nevertheless  be  filed  in  the  same  office,  and  within  the  same 
time,  in  which  an  inventory  is  in  other  cases  required  to  be  filed.  (Code 
1906,  p.  494.) 

§  1337.    Ascertainment  by  Tax  Commissioner  of  Taxable  Transfers — Cer- 
tificates. 

Sec.  14.  The  state  tax  commissioner  shall  as  soon  as  may  be,  from  the 
statements  and  reports  made  by  the  clerk  and  the  personal  representative 
or  trustee  or  other  person  as  aforesaid,  from  the  inventory  of  the  estate, 
if  there  be  one,  and  from  such  other  information  as  he  may  be  able  to  pro- 
cure, ascertain  whether  any  transfer  of  any  property  be  subject  to  a  tax 
under  the  provisions  of  this  chapter,  and,  if  it  be  subject  to  tax,  shall 
ascertain  and  assess  the  amount  of  the  tax  to  which  it  is  subject.  If  in  his 


752  INHERITANCE  TAXATION. 

opinion  no  transfer  or  any  part  of  such  property  is  taxable  hereunder,  he 
shall  certify  that  fact  in  writing,  made  in  duplicate.  One  of  said  cer- 
tificates shall  be  forwarded  by  him  to  the  clerk  of  the  county  court,  who 
is  required  to  make  report  under  section  twelve  hereof,  and  the  other  cer- 
tificate shall  be  forwarded  to  the  administrator,  executor  or  trustee  having 
such  property  in  charge,  or  to  the  grantee,  vendee,  bargainee  or  donee 
thereof.  If  in  his  opinion  the  transfer  of  any  of  the  property  so  trans- 
ferred is  taxable  under  the  provisions  of  this  act,  he  shall  in  like  manner 
certify  a  description  of  the  property,  or  of  the  part  thereof  so  liable,  and 
of  the  amount  of  tax  with  which  it  is  assessed,  and  shall  make  duplicate 
certificates  showing  those  facts,  ono  of  which  he  shall  forward  to  the  said 
clerk  and  one  to  such  administrator,  trustee,  grantee,  vendee,  bargainee  or 
donee.  (Code  1906,  p.  494.) 

§  1338.     Failure  to  Report  Transfers  to  Tax  Commissioner — Proceedings. 

Sec.  15.  If  any  transfer  be  not  reported  to  the  state  tax  commissioner 
by  the  clerk  of  the  county  court  or  the  executor,  administrator,  trustee, 
grantee,  vendee,  bargainee  or  donee,  or  other  person,  the  said  tax  commis- 
sioner may  proceed,  upon  such  information  as  he  can  obtain,  to  inquire  and 
determine  whether  any  such  transfer  is  subject  to  tax  under  this  act,  and 
what  tax,  if  any,  should  be  assessed  and  shall  proceed  as  to  any  such 
transfer  and  the  property  passing  thereby,  in  all  respects,  as  if  the  same 
had  been  reported  to  him  as  required  by  this  chapter.  (Code  1906,  j>.  495.) 

§  1339.    Recording  Certificates  of  Tax  Commissioner. 

Sec.  16.  The  executor,  administrator,  trustee,  devisee,  vendee,  grantee, 
bargainee  or  donee  shall  cause  the  certificate,  so  received  from  the  state 
tax  commissioner,  to  be  recorded  by  the  clerk  of  the  county  court.  Such 
certificate  shall  be  recorded  in  the  book  wherein  inventories  and  accounts 
of  fiduciaries  are  recorded;  but  it  shall  be  in  compliance  with  this  section 
if  such  a  certificate  be  laid  before  a  commissioner  of  accounts  of  said  court 
at  the  first  settlement  thereafter  of  the  accounts  of  any  fiduciary,  and 
be  made  a  part  of  the  report  of  such  commissioner  of  accounts  and  be 
recorded  with  it.  (Code  1906,  p.  495.) 

§  1340.    Assessment  of  Tax  by  Commissioner. 

Sec.  17.  Notwithstanding  any  such  certificates  may  have  been  made  and 
recorded,  if  it  afterward  appear  to  the  state  tax  commissioner  that  the 
transfer  of  the  property  mentioned  in  such  certificate,  or  any  part  thereof, 
is  subject  to  any  tax  and  in  addition  to  that  mentioned  in  such  certificate, 
or  that  it  is  taxable  in  a  case  where  such  certificate  showed  that  it  was 
not  liable  to  such  tax,  he  skull  assess  the  proper  tax  thereon  in  addition 
to  any  tax  which  may  have  been  theretofore  assessed,  and  shall  forthwith 
certify  the  amount  of  the  same  in  duplicate,  and  forward  one  of  such 
certificates  to  each  of  the  persons  to  whom  his  original  certificate  was  re- 
quired to  be  forwarded.  The  certificate,  so  forwarded  to  the  clerk  of  the 
county  court,  shall  by  him  be  forthwith  recorded  in  the  book  in  which 
deeds  of  trust  and  mortgages  are  recorded,  and  from  the  time  of  its  admis- 


WEST   VIRGINIA   STATUTE.  753 

sion  to  record  shall  constitute  a  lien  on  the  property  on  which  tax  is  as- 
sessed, for  the  amount  of  such  taxes,  and  any  interest  accruing  thereon,  until 
the  same  are  paid,  except  as  against  purchasers  for  value  before  such  admis- 
sion to  record,  without  notice  of  such  additional  liability  and  as  against 
those  who  may  claim  under  such  purchaser,  having  purchased  for  valuable 
consideration  without  notice  of  such  liability.  (Code  1906,  p.  495.) 

§  1341.    Payment  of  Tax  into  Treasury — Certificate  of  Payment. 

Sec.  18.  As  soon  as  the  amount  of  any  tax  upon  any  transfer  shall  be 
certified  by  the  state  tax  commissioner,  the  person  liable  for  such  tax  shall 
pay  the  amount  thereof  to  the  credit  of  the  treasury  of  West  Virginia,  in 
the  manner  provided  for  the  payment  of  other  moneys  into  such  treasury, 
except  that  the  certificate  of  the  bank  in  which  the  same  may  be  de- 
posited shall  be  in  duplicate,  and  shall  describe  the  property  upon,  the 
transfer  o^  which  the  tax  is  assessed,  and  that  one  of  such  duplicate  cer- 
tificates of  deposit  shall  be  forwarded  to  the  state  tax  commissioner. 
The  said  state  tax  commissioner  shall  ,at  once  certify,  in  duplicate,  that  all 
the  taxes  upon  such  transfer  under  the  provisions  of  this  act  have  been 
paid,  and  shall  forward  such  certificates,  one  to  the  person  making  the 
payment  and  the  other  to  the  clerk  of  the  county  court,  who  shall  record 
the  same  in  the  book  in  which  releases  are  recorded.  From  the  date  when 
any  such  certificate  of  payment,  or  any  such  certificate  that  the  property  is 
not  liable  to  such  taxes,  is  admitted  to  record,  the  property  mentioned 
in  such  certificate  shall  be  free  from  any  lien  or  claim  for  any  such  taxes, 
except  as  provided  in  the  preceding  section.  (Code  1906,  p.  496.) 

§  1342.    Enforcement  of  Tax 

Sec.  19.  If  any  such  taxes,  hereinbefore  provided  for,  shall  not  be  paid 
within  sixty  days  from  the  time  they  become  payable,  or  if  there  be  an 
appeal  with  respect  to  the  same  or  payment  thereof  be  prevented  by  litiga- 
tion or  other  unavoidable  cause,  within  sixty  days  after  the  decision  of 
such  appeal  or  the  end  of  such  litigation  or  other  cause  of  delay,  the  state 
tax  commissioner  shall  on  behalf  of  the  state,  and  with  the  assistance  of  the 
prosecuting  attorney  of  the  county,  proceed  in  the  circuit  court,  by  appro- 
priate proceedings,  to  enforce  the  lien  of  such  taxes  upon  any  property  sub- 
ject to  such  lien,  and  to  obtain  the  sale  thereof,  or  of  so  much  thereof 
as  may  be  necessary  to  satisfy  such  lien,  and  relief  shall  be  given  by  such 
circuit  court  accordingly.  In  addition  to  any  other  remedy  for  the  collec- 
tion of  any  tax  upon  such  transfer,  the  same  may  be  recovered  in  an  action 
of  assumpsit  on  behalf  of  the  state  of  West  Virginia  against  any  person 
liable  for  such  tax,  and  the  state  tax  commissioner  is  authorized  to  bring 
such  action  in  any  circuit  court  or  before  any  justice  having  jurisdiction, 
and  the  prosecuting  attorney  shall  assist  in  the  prosecution  thereof.  The 
state  tax  commissioner  may  compromise  and  settle  the  amount  of  any  such 
tax  when  there  is  a  controversy  as  to  the  relationship  between  the  former 
owner  of  the  property  and  the  person  to  whom  it  is  transferred.  (Code 
1906,  p.  496.) 


754  INHERITANCE  TAXATION. 

§  1343.    Appeals  from  Assessment. 

Sec.  20.  Within  thirty  days  after  the  state  tax  commissioner  shall  have 
forwarded  a  certificate  of  the  amount  of  tax  assessed  upon  the  transfer 
of  any  property,  any  person  interested  in  such  transfer,  or  in  such  property, 
may  apply  to  the  circuit  court  of  any  county,  in  which  such  property  or 
the  greater  part  thereof  may  be,  for  an  appeal  from  the  assessment  so  made. 
Such  application  shall  be  by  petition  in  writing,  stating  the  names  and 
addresses  of  all  persons  interested,  showing  the  grounds  upon  which  the 
appellant  claims  to  be  aggrieved,  and  an  appeal  shall  be  allowed  thereon 
forthwith;  and,  until  the  same  shall  have  been  heard  and  decided,  pro- 
ceedings for  the  collection  of  such  taxes  may  be  stayed  by  order  of  said 
court  for  good  cause  shown,  and  upon  such  conditions  as  it  may  direct. 
Such  appeal  shall  have  precedence  over  other  civil  cases,  except  those 
relating  to  taxes  claimed  by  the  state,  and  shall  be  heard  and  decided 
as  soon  as  may  be.  Before  any  such  hearing  reasonable  notice  thereof 
shall  be  given  to  all  other  persons  interested,  and  the  state  tax  commis- 
sioner and  prosecuting  attorney,  who,  with  the  said  commissioner,  shall 
defend  the  interests  of  the  state.  Upon  such  hearing  the  court  shall  con- 
sider all  certificates  relating  to  such  taxes,  and  all  other  pertinent  evidence 
that  may  be  offered  by  either  party.  If  it  be  of  the  opinion  that  the 
assessment  appealed  from  was  correct,  it  shall  affirm  the  same;  if  it  be  of 
the  opinion  that  the  transfer  was  not  subject  to  any  such  taxes,  it  shall 
set  aside  the  said  assessment  and  enter  an  order  exonerating  the  property 
from  taxes.  If  it  be  of  the  opinion  that  the  transfer  was  subject  to  such 
taxation,  but  that  the  amount  of  taxes  assessed  was  erroneous,  it  shall 
correct  the  assessment  thereof  by  increasing  or  decreasing  the  amount 
thereof,  as  it  may  think  just,  and  shall  enter  judgjnent  accordingly.  A 
copy  of  the  judgment  upon  any  such  appeal  shall  be  certified  in  duplicate, 
and  forwarded  and  recorded  as  is  herein  provided  with  respect  to  the  cer- 
tificate of  the  state  tax  commissioner.  (Code  1906,  p.  497.) 

§  1344.    Fees  of  Clerk  of  County  Court. 

Sec.  21.  For  his  services  in  recording  such  certificate  or  copy  of  judg- 
ment, the  clerk  of  the  county  court  shall  be  entitled  to  a  fee  of  fifty  cents, 
to  be  taxed  to  and  be  paid  by  the  person  to  whom  such  property  shall 
be  transferred,  (Code  1906,  p.  497.) 

§  1345.    Account  of  Fiduciaries  not  Allowed  Without  Certificate  of  Tax 

Commissioner. 

Sec.  22.  In  the  settlement  of  his  accounts  any  fiduciary  making  payment 
of  the  amount  assessed  upon  any  such  transfer,  as  shown  by  any  such 
certificate  or  judgment,  may  have  credit  for  such  payment  upon  filing  the 
certificate  of  the  state  tax  commissioner  that  such  taxes  have  been  paid, 
but  no  final  settlement  shall  be  made  of  the  account  of  any  fiduciary  liable 
for  such  taxes  until  he  shall  have  filed  such  certificate  of  payment.  (Code 
1906,  p.  498.) 


WEST  VIRGINIA   STATUTE.  755 

§  1346.     Compromise  by  Tax  Commissioner. 

Sec.  23.  The  state  tax  commissioner  may  compromise  and  settle  the 
amount  of  such  taxes  whenever  controversy  may  arise  as  to  the  ownership 
between  the  former  owner  of  the  property  and  the  person  to  whom  the  same 
may  have  passed.  (Code  1906,  p.  498.) 

§  1347.    Liability  of  Fiduciaries  and  Sureties. 

Sec.  24.  Every  fiduciary,  and  the  sureties  on  his  bond,  shall  be  liable 
upon  such  bond  for  all  moneys  such  fiduciary  may  receive  for  taxes  under 
this  chapter,  and  for  the  proceeds  of  all  sales  of  real  estate  received  by 
him  under  the  provisions  hereof;  and  if  any  such  fiduciary  fail  to  perform 
any  of  the  duties  imposed  on  him  by  this  chapter,  he  and  his  sureties 
shall  be  liable  upon  his  bond  for  any  damages  resulting  from  such  failure, 
the  court  under  whose  order  he  qualified  may  revoke  his  authority,  and  he 
and  his  sureties  shall  be  liable  to  the  same  proceedings  as  if  his  authority 
had  been  revoked  for  any  other  cause.  (Code  1906,  p.  498.) 

§  1348.     Penalty  for  Failure  to  Discharge  Duties. 

Sec.  25.  Any  clerk  or  other  person  failing  to  discharge  any  duty  imposed 
upon  him  by  this  act  shall  be  guilty  of  a  misdemeanor,  and  be  fined,  in 
the  discretion  of  the  court,  not  less  than  ten  nor  more  than  five  hundred 
dollars.  (Code  1906,  p.  498.) 

§  1349.    Inspection  of  Books  by  Tax  Commissioner. 

Sec.  26.  Every  person  having  in  his  possession  or  control  any  book  or 
paper  containing  any  information  respecting  property  transferred,  as  afore- 
said, shall  at  the  request  of  the  state  tax  commissioner  exhibit  the  same 
to  him  or  to  the  prosecuting  attorney  of  the  county,  and  any  person  in 
interest  shall  make  written  answer  under  oath  to  any  questions  which  the 
said  state  tax  commissioner  may  put  in  writing  concerning  such  property. 
Any  person  failing  to  comply  with  the  provisions  of  this  section  shall  be 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof  shall  be,  in  the  dis- 
cretion of  the  court,  fined  not  less  than  ten  nor  more  than  five  hundred 
dollars.  (Code  1906,  p.  498.) 


756  INHERITANCE  TAXATION. 

CHAPTER  LIX. 

WISCONSIN  STATUTE. 

(Laws  of  190S,  pp.  65-81;  Laws  of  1905,  p.  162;  Laws  of  1907,  pp.  5t,  585; 
Laws  of  1909,  pp.  635-647;  Laws  of  1911,  pp.  5S4,  644.) 

§  1350.  Transfers  Subject  to  Tax — Value  of  Property. 

§  1351.  Primary  Bates  of  Taxation. 

§  1352.  Other  Rates  of  Taxation. 

§  1353.  Exemptions  from  Tax. 

§  1354.  Lien  of  Tax — Payment  to  Treasurer — Receipts — Time  for  Payment, 

§  1355.  Interest   and   Discount. 

§  1356.  Collection  of  Tax  by  Executor — Sale  of  Property. 

§  1357.  Refund  of  Tax  in  Certain  Cases. 

§  1358.  Bond  to  Pay  Tax  When  Person  Cornea  into  Possession  or  Enjoy- 
ment. 

§  1359.  Bequest  to  Executor  in  Lieu  of  Compensation. 

§  1360.  Transfer  or  Delivery  of  Stocks,  Securities  and  Deposits — Notice. 

§  1361.  Jurisdiction  of  County  Court — Estates  of  Nonresidents — Fees  of 
County. 

§  1362.  Appraisers  and  Appraisement — Contingent  and  Expectant  Estates. 

§  1363.  Notice  of  Appraisement — Witnesses — Report — Compensation. 

§  1364.  Report  of  Special  Appraiser — Proceedings  Thereon — Computation 
of  Tax — Reappraise ment. 

§  1365.  Enforcement  of  Unpaid  Taxes. 

§  1366.  Duties  of  Public  Administrator. 

§  1367.  Repealed. 

§  1368.  Report  of  County  Treasurer. 

§  1369.  Retention  of  Funds  by  Treasurer  for  Use  of  County. 

§  1370.  Compromise  of  Taxes  in  Certain  Cases. 

§  1371.  Receipts  for  Payment  of  Tax. 

§  1372.  Payment  to  State  Treasurer. 

§  1373.  Definition  of  Terms. 

§  1374.  Compromise  of  Taxes  Accruing  Prior  to  This  Act. 

§  1350.     Transfers  Subject  to  Tax — Value  of  Property. 

Sec.  1.  A  tax  shall  be  and  is  hereby  imposed  upon  any  transfer  of  prop- 
erty, real,  personal  or  mixed,  or  any  interest  therein,  or  income  therefrom 
in  trust  or  otherwise,  to  any  person,  association  or  corporation,  except 
county,  town  or  municipal  corporations  within  the  state,  for  strictly  county, 
town  or  municipal  purposes,  and  corporations  of  this  state  organized  under 
its  laws  solely  for  religious,  charitable  or  educational  purposes,  which  shall 
use  the  property  so  transferred  exclusively  for  the  purposes  of  their  or- 
ganization within  the  state,  in  the  following  cases: 

When  the  transfer  is  by  will  or  by  the  intestate  laws  of  this  state 
from  any  person  dying  possessed  of  the  property  while  a  resident  of  the 
state. 


WISCONSIN  STATUTE,  757 

When  a  transfer  is  by  will  or  intestate  law,  of  property  within  the  state 
or  within  its  jurisdiction  and  the  decedent  wan  a  nonresident  of  the  state 
at  the  time  of  his  death. 

When  the  transfer  is  of  property  made  by  a  resident  or  by  a  nonresident 
when  such  nonresident's  property  is  within  this  state,  or  within  its  juris- 
diction, by  deed,  grant,  bargain,  sale  or  gift,  made  in  contemplation  of  the 
death  of  the  grantor,  vendor  or  donor,  or  intended  to  take  effect  in,  posses- 
sion or  enjoyment  at  or  after  such  death. 

Such  tax  shall  be  imposed  when  any  such  person  or  corporation  becomes 
beneficially  entitled,  in  possession  or  expectancy  to  any  property  or  the  income 
thereof,  by  any  such  transfer  whether  made  before  or  after  the  passage  of 
this  act,  provided  that  property  or  estates  which  have  vested  in  such  persons 
or  corporations  before  this  act  takes  effect  shall  not  be  subject  to  the  tax. 

Whenever  any  person  or  corporation  shall  exercise  a  power  of  appointment 
derived  from  any  disposition  of  property  made  either  before  or  after  the 
passage  of  this  act,  such  appointment  when  made  shall  be  deemed  a  transfer 
taxable  under  the  provisions  of  this  act  in  the  same  manner  as  though  the 
property  to  which  such  appointment  relates  belonged  absolutely  to  the  donee 
of  such  power  and  had  been  bequeathed  or  devised  by  such  donee  by  will; 
and  whenever  any  person  or  corporation  possessing  such  a  power  of  appoint- 
ment so  derived  shall  omit  or  fail  to  exercise  the  same  within  the  time  provided 
therefor,  in  whole  or  in  part  a  transfer  taxable  under  the  provisions  of  this 
act  shall  be  deemed  to  take  place  to  the  extent  of  such  omission  or  failure,  in 
the  same  manner  as  though  the  persons  or  corporations  thereby  becoming 
entitled  to  the  possession  or  enjoyment  of  the  property  to  which  such  power 
related  had  succeeded  thereto  by  a  will  of  the  donee  of  the  power  failing  to 
exercise  such  power,  taking  effect  at  the  time  of  such  omission  or  failure. 

The  tax  so  imposed  shall  be  upon'  the  clear  market  value  of  such  property 
at  the  rates  hereinafter  prescribed  and  only  upon  the  excess  of  the  exemptions 
hereinafter  granted.  (Laws  1903,  p.  65;  Laws  1905,  p.  162.) 

§  1351.    Primary  Bates  of  Taxation. 

Sec.  2.  When  the  property  or  any  beneficial  interest  therein  passes  by  any 
such  transfer  where  the  amount  of  the  property  shall  exceed  in  value  the 
exemption  hereinafter  specified,  and  shall  not  exceed  in  value  twenty-five 
thousand  dollars  the  tax  hereby  imposed  shall  be: 

Where  the  person  or  persons  entitled  to  any  beneficial  interest  in  such 
property  shall  be  the  husband),  wife,  lineal  issue,  lineal  ancestor  of  the  dece- 
dent or  any  child  adopted  as  such  in  conformity  with  the  laws  of  this  state, 
or  any  child  to  whom  such  decedent  for  not  less  than  ten  years  prior  to  such 
transfer  stood  in  the  mutually  acknowledged  relation  of  a  parent,  provided, 
however,  such  relationship  began  at  or  before  the  child's  fifteenth  birthday, 
and  was  continuous  for  said  ten  years  thereafter,  or  any  lineal  issue  of  such 
adopted  or  mutually  acknowledged  child,  at  the  rate  of  one  per  centum  of  the 
clear  value  of  such  interest  in  such  property. 

Where  the  person  or  persons  entitled  to  any  beneficial  interest  in  such 
property  shall  be  the  brother  or  sister  or  a  descendant  of  a  brother  or  sister 
of  the  decedent,  a  wife  ox  widow  of  a  son,  or  the  husband  of  a  daughter  of  the 


758  INHERITANCE  TAXATION. 

decedent,  at  the  rate  of  one  and  one-half  per  centum  of  the  clear  value  of  such 
interest  in   such   property. 

Where  the  person  or  persons  entitled  to  any  beneficial  interest  in  such  prop- 
erty shall  be  the  brother  or  sister  of  the  father  or  mother  or  a  descendant  of 
a  brother  or  sister  of  the  father  or  mother  of  the  decedent,  at  the  rate  of  three 
per  centum  of  the  clear  value  of  such  interest  in  such  property. 

Where  the  person  or  persons  entitled  to  any  beneficial  interest  in  such  prop 
erty  shall  be  the  brother  or  sister  of  the  grandfather  or  grandmother  or  a 
descendant  of  the  brother  or  sister  of  the  grandfather  or  grandmother  of  the 
decedent,  at  the  rate  of  four  per  centum  of  the  clear  value  of  such  interest  in 
such  property. 

Where  the  person  or  persons  entitled  to  any  beneficial  interest  in  such  prop- 
erty shall  be  in  any  other  degree  of  collateral  consanguinity  than  is  herein- 
before stated,  OT  shall  be  a  stranger  in  blood  to  the  decedent,  or  shall  be  a  body 
politic  or  corporate,  at  the  rate  of  five  per  centum  of  the  clear  value  of  such 
interest  in  such  property.  (Laws  1903,  p.  66.) 

§  1352.     Other  Kates  of  Taxation. 

Sec.  3.  The  foregoing  rates  in  section  two  are  for  convenience  termed 
the  primary  rates. 

When  the  amount  of  the  clear  value  of  such  property  or  interest  exceeds 
twenty-five  thousand  dollars,  the  rates  of  tax  upon  such  excess  shall  be  as  fol- 
lows: 

Upon  all  in  excess  of  twenty-five  thousand  dollars  and  up  to  fifty  thousand 
dollars,  one  and  one-half  times  the  primary  rates. 

Upon  all  in  excess  of  fifty  thousand  dollars  and  up  to  one  hundred  thousand 
dollars,  two  times  the  primary  rates. 

Upon  all  in  excess  of  one  hundred  thousand  dollars  and  up  to  five  hundred 
thousand  dollars,  two  and  one-half  the  primary  rates. 

Upon  all  in  excess  of  five  bundled  thousand  dollars,  three  times  the  primary 
rates.  (Laws  1903,  p.  67.) 

§  1353.    Exemptions  from  Tax. 

Sec.  4.  The  following  exemptions  from  the  tax,  to  be  taken  out  of  the 
first  twenty-five  thousand  dollars,  are  hereby  allowed: 

All  property  transferred  to  municipal  corporations  within  the  state  for 
strictly  county,  town,  or  municipal  purposes,  or  to  corporations  of  this  state 
organized  under  its  laws,  solely  for  religious,  charitable,  or  educational  pur- 
poses, which  shall  use  the  property  so  transferred,  exclusively  for  the  purposes 
of  their  organization,  within  the  state,  shall  be  exempt.  The  inheritance 
tax  laws  shall  not  be  held  applicable  to  any  transfer  of  property  heretofore 
made  to  any  county,  town,  or  municipal  corporation  within  the  state  for 
strictly  municipal  purposes. 

Property  of  the  clear  value  of  ten  thousand  dollars  transferred  to  the  widow 
of  the  decedent,  and  two  thousand  dollars  transferred  to  each  of  the  other 
persons  described  in  the  first  subdivision  of  section  2  shall  be  exempt. 

Property  of  the  clear  value  of  five  hundred  dollars  transferred  to  each  of 
the  persons  described  in  the  second  subdivision  of  section  2  shall  be,  exempt. 


WISCONSIN  STATUTE.  759 

Property  of  the  clear  value  of  two  hundred  and  fifty  dollars  transferred 
to  each  of  the  persons  described  in  third  subdivision  of  section  2  shall  be 
exempt. 

Property  of  the  clear  value  o>f  one  hundred  and  fifty  dollars  transferred 
to  each  of  the  persons  described  in  the  fourth  subdivision  of  section  2  shall 
be  exempt. 

Property  of  the  clear  value  of  one  hundred  dollars  transferred  to  each 
of  the  persons  and  corporations  described  in  the  fifth  subdivision  of  section  2 
shall  be  exempt.  (Laws  1903,  p.  68;  Laws  1905,  p.  162;  Laws  1911,  p.  644.) 

§  1354.    Lien  of  Tax — Payment  to  Treasurer— Receipts — Time  for  Payment. 

Sec.  5.  Every  such  tax  shall  be  and  remain  a  lien  upon  the  property 
transferred  until  paid  and  the  person  to  whom  the  property  is  transferred  and 
the  administrators,  executors,  and  trustees  of  every  estate  so  transferred, 
shall  be  personally  liable  for  such  tax  until  its  payment. 

The  tax  shall  be  paid  to  the  treasurer  of  the  county  in  which  the  county 
court  is  situated  having  jurisdiction  as  herein  provided;  and  said  treasurer 
shall  make  duplicate  receipts  of  such  payment,  one  of  which  he  shall  imme- 
diately send  to  the  state  treasurer,  whose  dluty  it  shall  be  to  charge  the 
county  treasurer  so  receiving  the  tax,  with  the  amount  thereof,  and  the  other 
receipt  shall  be  delivered  to  the  executor,  administrator,  or  trustee,  where- 
upon it  shall  be  a  proper  voucher  in  the  settlement  of  hia  accounts.. 

But  no  executor,  administrator,  or  trustee  shall  be  entitled  to  a  final  ac- 
counting of  an  estate,  in  settlement  of  which  a  tax  is  due  under  the  provisions 
of  this  act,  unless  he  shall  produce  such  receipts  or  a  certified  copy  thereof, 
or  unless  a  bond  shall  have  been  filed  as  prescribed  by  section  9. 

All  taxes  imposed  by  this  act  shall  be  due  and  payable  at  the  time  of  the 
transfer,  except  as  hereinafter  provided.  Taxes  upon  the  transfer  of  any 
estate,  property,  or  interest  therein,  limited,  conditioned,  dependent,  or  de- 
terminable  upon  the  happening  of  any  contingency  or  future  event,  by  reason 
of  which  the  fair  market  value  thereof  cannot  be  ascertained  at  the  time 
of  transfer,  as  herein  provided,  shall  accrue  and  become  due  and  payable  when 
the  beneficiary  shall  come  into  actual  possession  or  enjoyment  thereof.  (Laws 
1903,  p.  69;  Laws  1909,  p.  635.) 

§  1355.     Interest  and  Discount. 

Sec.  6.  If  such  tax  is  paid  within  one  year  from  the  accruing  thereof, 
a  discount  of  five  per  centum  shall  be  allowed  and  deducted  therefrom.  If 
such  tax  is  not  paid  within  eighteen  months  from  the  accruing  thereof,  in- 
terest shall  be  charged  and  collected  thereon  at  the  rate  of  ten  per  centum 
per  annum  from  the  time  the  tax  accrued;  unless  by  reason  of  claims  made 
upon  the  estate,  necessary  litigation  or  other  unavoidable  cause  of  delay,  such 
tax  shall  not  be  determined  and  paid  as  herein  provided,  in  which  case  interest 
at  the  rate  of  six  per  centum  per  annum  shall  be  charged  upon  such  tax  from 
the  accrual  thereof  until  the  cause  of  such  delay  is  removed,  after  which 
ten  per  centum  shall  be  charged.  In  all  cases  when  a  bond  shall  be  given 
under  the  provisions  of  section  9,  interest  shall  be  charged  at  the  rate  of 


760  INHERITANCE  TAXATION. 

six  per  centum  from  the  accrual  of  the  tax,  until  the  date  of  payment  thereof. 
(Laws  1903,  p.  69;  Laws  1909,  p.  636.) 

§  1356.    Collection  of  Tax  by  Executor — Sale  of  Property. 

Sec.  7.  Every  executor,  administrator,  or  trustee  shall  have  full  power 
to  sell  so  much  of  the  property  of  the  decedent /as  will  enable  him  to  pay 
such  tax  in  the  same  manner  as  he  might  be  entitled  by  law  to  do  for  the 
payment  of  the  debts  of  the  testator  of  [or]  intestate.  Any  such  administrator, 
executor,  or  trustee  having  in  charge  or  in  trust  any  legacy  or  property  for 
distribution,  subject  to  such  tax,  shall  deduct  the  tax  therefrom;  and  within 
thirty  days  therefrom  shall  pay  over  the  same  to  the  county  treasurer,  as 
herein  provided.  If  such  legacy  or  property  be  not  in  money,  he  shall  collect 
the  tax  thereon  upon  the  appraised  value  thereof,  from  the  person  entitled 
thereto.  He  shall  not  deliver  or  be  compelled  to  deliver  any  specific  legacy 
or  property  subject  to  tax  under  this  act,  to  any  person  until  he  shall  have 
collected  the  tax  thereon.  If  any  such  legacy  shall  be  charged  upon  or 
payable  out  of  real  property,  the  heir  or  devisee  shall  dediuet  such  tax  there- 
from and  pay  it  to  the  administrator,  executor,  or  trustee,  and  the  tax  shall 
remain  a  Men  or  charge  on  such  real  property  until  paid,  and  the  payment 
thereof  shall  be  enforced  by  the  executor,  administrator,  or  trustee  in  the  same 
manner  that  payment  of  the  legacy  might  be  enforced,  or  by  the  district 
attorney  under  section  16.  If  any  such  legacy  shall  be  given  in  money  to  any 
such  person  for  a  limited  period,  the  administrator,  executor,  or  trustee  shall 
retain  the  tax  upon  the  whole  amount,  but  if  it  be  not  in  money,  he  shall  make 
application  to  the  court  having  jurisdiction  of  an  accounting  by  him  to  make 
tin  apportionment  if  the  case  require  it,  of  the  sum  to  be  paid  into  the  hands 
by  such  legatees,  and  for  such  further  order  relative  thgreto  as  the  case  may 
require.  (Laws  1903,  p.  70;  Laws  1909,  p.  636.) 

§  1357.     Refund   of  Tax  in  Certain   Cases. 

See.  S.  If  any  debt  shall  be  proved  against  the  estate  of  the  decedent  after 
the  payment  of  any  legacy  or  distributive  share  thereof,  from  which  any 
such  tax  has  been  deducted,  or  upon  which  it  has  been  paid  by  the  person 
entitled  to  such  legacy  or  distributive  share  and  such  person  is  required  by 
the  order  of  the  county  court  having  jurisdiction  thereof  on  notice  to  the 
state  treasurer  to  refund  the  amount  of  such  debts  or  any  part  thereof,  an 
equitable  proportion  of  the  tax  shall  be  repaid  to  such  person  by  the  executor, 
administrator,  trustee,  or  officer  to  whom  said  tax  has  been  paid. 

When  any  amount  of  said  tax  shall  have  been  paid  erroneously  into  the 
state  treasury,  it  shall  be  lawful  for  the  state  treasurer  upon  receiving  a  tran- 
script from  the  county  court  record  showing  the  facts  to  refund  the  amount 
of  such  erroneous  or  illegal  payment  to  the  executor,  administrator,  trustee, 
person,  or  persons  who  have  paid  any  such  tax  in  error,  from  the  treasury;  or 
the  said  state  treasurer  may  order,  direct,  and  allow  the  treasurer  of  any 
county  to  refund  the  amount  of  any  illegal  or  erroneous  payment  of  such 
tax  out  of  the  funds  in  his  hands  or  custody  to  the  credit  of  such  taxes,  and 
credit  him  with  the  same  in  his  quarterly  account  rendered  to  the  state  treas- 
urer under  this  act.  Provided,  however,  that  all  applications  for  such  re- 


WISCONSIN  STATUTE.  761 

funding  of  erroneous  taxes  shall  be  made  within  one  year  from  the  payment 
thereof,  or  within  one  year  after  the  reversal  or  modification  of  the  order  fixing 
auch  tax,  (Laws  1903,  p.  70;  Laws  1909,  p.  637.) 

§  1358.    Bond  to  Pay  Tax  When  Person  Comes  into  Possession  or  Enjoy- 
ment, 

Sec.  9.  Any  beneficiary  of  any  property  chargeable  with  a  tax  under  this 
act,  and  any  executors,  administrators  and  trustees  thereof,  may  elect,  within 
eighteen  months  from  the  date  of  the  transfer  thereof  as  herein  provided, 
not  to  pay  such  tax  until  the  person  or  persons  beneficially  interested  therein 
shall  come  into  the  actual  possession  or  enjoyment  thereof.  The  person  or 
persons  so  electing  shall  give  a  bond  to  the  state  in  a  penalty  of  three  times 
the  amount  of  any  such  tax,  with  such  sureties  as  the  county  court  of  the 
proper  county  may  approve,  conditioned  for  the  payment  of  such  tax  and 
interest  thereon,  at  such  time  or  period  as  the  person  or  persons  beneficially 
interested  therein  may  come  into  the  actual  possession  or  enjoyment  of  such 
property,  which  bond  shall  be  filed  in  the  county  court.  Such  bond  must 
be  executed  and  filed  and  a  full  return  of  such  property  upon  oath  made  to 
the  county  court  within  one  year  from  the  date  of  such  transfer  thereof  as 
herein  provided,  and  such  bond  must  be  renewed  every  five  years.  (Laws 
1903,  p.  71.) 

§  1359.     Bequest  to  Executor  in  Lieu  of  Compensation. 

Sec.  10.  If  a  testator  bequeaths  property  to  one  or  more  executors  or 
trustees  in  lieu  of  their  commissions  or  allowances,  or  makes  them  his  lega- 
tees to  an  amount  exceeding  the  commissions  or  allowances  prescribed  by  law 
for  an  executor  or  trustee,  the  excess  in  value  of  the  property  so  bequeathed, 
above  the  amount  of  commissions  or  allowances  prescribed  by  law  in  similar 
cases,  shall  be  taxable  by  this  act.  (Laws  1903,  p.  71.) 

§  1360.     Transfer  or  Delivery  of  Stocks,  Securities  and  Deposits — Notice. 

Sec.  11.  If  a  foreign  executor,  administrator,  or  trustee  shall  assign  01 
transfer  any  stock  or  obligations  in  this  state,  standing  in  the  name  of  a  dece- 
dent or  in  trust  for  a  decedent,  liable  to  any  such  tax,  the  tax  shall  be  paid 
to  the  treasurer  of  the  proper  county  or  the  state  treasurer  on  the  transfer 
thereof. 

No  safe  deposit  company,  bank,  or  other  institution,  person  or  persons, 
holding  securities  or  assets  of  a  nonresident  decedent,  nor  any  foreign  or 
domestic  corporation  doing  business  within  this  state  in  which  a  nonresident 
decedent  held  stock  at  bis  decease,  shall  deliver  or  transfer  the  same  to  the 
executors,  administrators,  or  legal  representatives  of  said  decedent,  or  upon 
their  order  or  request,  unless  notice  of  the  time  and  place  of  such  intended 
transfer  be  served  upon  the  attorney  general  at  least  ten  days  prior  to  the 
said  transfer;  nor  shall  any  such  safe  deposit  company,  bank,  or  other  in- 
stitution, person  or  persons,  nor  any  such  foreign  or  domestic  corporation, 
deliver  or  transfer  any  securities  or  assets  of  the  estate  of  a  nonresident 
decedent  without  retaining  a  sufficient  portion  or  amount  thereof  to  pay  any 
tax  which  may  thereafter  be  assessed  ou  account  of  the  transfer  of  such 


7G2  INHERITANCE   TAXATION. 

securities  or  assets  under  the  provisions  of  the  inheritance  tar  laws,  without 
an  order  from  the  proper  court  authorizing  such  transfer;  and  it  shall  be 
lawful  for  the  attorney  general  or  public  administrator  personally  or  by 
representative,  to  examine  said  securities  or  assets  at  any  time  before  such 
delivery  or  transfer.  Failure  to  serve  such  notice  or  to  allow  such  examination 
or  to  retain  a  sufficient  portion  or  amount  to  pay  such  tax  as  herein  provided, 
shall  render  said  safe  deposit  company,  trust  company,  bank,  or  other  institu- 
tion, person  or  persons,  or  such  foreign  or  domestic  corporation,  liable  to  the 
payment  of  the  tax  due  upon  said  securities  or  assets  in  pursuance  of  the 
provisions  of  the  inheritance  tax  laws.  (Laws  1903,  p.  72;  Laws  1909,  p.  638; 
Laws  1911,  p.  644.) 

§  1361.  Jurisdiction  of  County  Court — Estates  of  Nonresidents — Fees  of 
County. 

Sec.  12.  The  county  court,  of  every  county  of  the  state  having  jurisdiction 
to  grant  letters  testamentary  or  of  administration  upon  the  estate  of  a  de- 
cedent whose  property  is  chargeable  with  any  tax  under  the  inheritance  tax 
laws,  or  to  appoint  a  trustee  of  such  estate  or  any  part  thereof,  ox  to  give 
ancillary  letters  thereon,  shall  have  jurisdiction  to  hear  and  determine  all 
questions  arising  under  the  provisions  of  the  inheritance  tax  laws  and  to  do 
any  act  in  relation  thereto  authorized  by  law  to  be  done  by  a  county  court  in 
other  matters  or  proceedings  coming  within  its  jurisdiction;  and  if  two  or 
more  county  courts  shall  be  entitled  to  exercise  any  such  jurisdiction,  the 
county  court  first  acquiring  jurisdiction  hereunder,  shall  retain  the  same  to 
the  exclusion  of  every  other  county  court. 

Every  petition  for  ancillary  letters  testamentary  or  of  administration  shall 
include  the  public  administrator  as  a  person  to  be  notified,  and  a  true  and 
correct  statement  of  all  the  decedent's  property  in  this  state  with  the  value 
thereof;  upon  presentation  thereof,  the  county  court  shall  cause  the  order  for 
hearing  to  be  served  personally  upon  the  public  administrator;  and  upon  the 
hearing,  the  county  court  shall  determine  the  amount  of  the  inheritance  tax 
which  may  be  or  become  due,  and  the  decree  awarding  the  letters  may  contain 
provisions  for  the  payment  of  such  tax  or  the  giving  of  security  therefor. 

The  county  court  and  the  judge  thereof  at  the  seat  of  government  shall  have 
jurisdiction  to  hear  and  determine,  as  other  matters  not  appertaining  to  its 
regular  probate  business,  all  questions  relating  to  the  determination  and  ad- 
justment of  inheritance  taxes  in  the  estates  of  nonresident  decedents  in  which 
it  does  not  otherwise  appear  necessary  for  regular  administration  to  be  had 
therein.  And  in  such  estates  the  public  administrator  may  be  appointed  as 
special  administrator  for  the  purposes  of  such  adjustment.  The  county 
treasurer  shall  retain  for  the  use  of  the  county  out  of  all  such  taxes  paid  and 
accounted  for,  only  one  per  cent,  and  the  balance,  less  the  statutory  expenses 
of  collection  and  adjustment  as  fixed  by  the  court,  shall  be  paid  into  the  state 
treasury;  provided,  however,  that  the  minimum  fee  to  which  the  county  shall 
be  entitled  shall  be  five  dollars  in  each  case  and  that  in  no  case  shall  the 
maximum  fee  exceed  five  hundred  dollars.  (Laws  1903,  p.  72;  Laws  1909,  p. 
638;  Laws  1911,  p.  645.) 


WISCONSIN   STATUTE.  763 

§  1362.    Appraisers  and  Appraisement — Contingent  and  Expectant  Estates. 

Sec.  13.  The  county  court  upon  the  application  of  any  interested  party,  in- 
cluding the  attorney  general  and  public  administrator  or  upon  its  own  motion, 
shall  as  often  as,  and  whenever  occasion  may  require  appoint  a  competent 
person  as  special  appraiser  to  fix  the  fair  market  value  at  the  time  of  the 
transfer  thereof  of  the  property  of  persons  whose  estate  shall  be  subject  to  the 
payment  of  any  tax  imposed  by  this  act. 

Whenever  a  transfer  of  property  is  made  upon  which  there  is,  or  in  any  con- 
tingency there  may  be,  a  tax  imposed,  such  property  shall  be  appraised  at  its 
clear  market  value  immediately  upon  the  transfer  or  as  soon  thereafter  as 
practicable.  The  value  of  every  future  or  limited  estate,  income,  interest,  or 
annuity  dependent  upon  any  life  or  lives  in  being,  shall  be  determined  by  the 
rule,  method,  and  standard  of  mortality  and  value  employed  by  the  com- 
missioner of  insurance  in  ascertaining  the  value  of  policies  of  life  insurance 
and  annuities  for  the  determination  of  liabilities  of  life  insurance  companies 
except  that  the  rate  of  interest  for  making  such  computation  shall  be  five  per 
centum  per 'annum. 

In  estimating  the  value  of  any  estate  or  interest  in  property  to  the  beneficial 
enjoyment  of  possession  whereof  there  are  persons  or  corporations  presently 
entitled  thereto,  no  allowance  shall  be  made  in  respect  of  any  contingent 
encumbrance  thereon,  nor  in  respect  of  any  contingency  upon  the  happening 
of  which  the  estate  or  property  or  some  part  thereof,  or  interest  therein,  might 
be  abridged,  defeated,  or  diminished;  provided,  however,  that  in  the  event  of 
such  encumbrance  taking  effect  as  an  actual  burden  upon  the  interest  of  the 
beneficiary  or  in  the  event  of  the  abridgment,  defeat,  or  diminution  of  such 
estate  or  property  or  interest  therein  as  aforesaid,  a  return  shall  be  made  to 
the  person  properly  entitled  thereto  of  a  proportionate  amount  of  such  tax 
in  respect  of  the  amount  or  value  of  the  encumbrance  when  taking  effect  or  so 
much  as  will  reduce  the  same  to  the  amount  which  would  have  been  assessed 
in  respect  of  the  actual  duration  or  extent  of  the  estate  or  interest  enjoyed. 
Such  return  of  tax  shall  be  made  in  the  manner  provided  in  section  8. 

Where  any  property  shall  after  the  passage  of  this  act  be  transferred 
subject  to  any  charge,  estate,  or  interest  determinable  by  the  death  of  any 
person  or  at  any  period  ascertainable  only  by  reference  to  death,  the  increase 
of  benefit  accruing  to  any  person  or  corporation  upon  the  extinction  or  de- 
termination of  such  charge,  estate  or  interest  shall  be  deemed1  a  transfer  of 
property  taxable  under  the  provisions  of  this  act  in  the  same  manner  as  though 
the  person  or  corporation  beneficially  entitled  thereto  had  then  acquired  such 
increase  of  benefit  from  the  person  from  whom  the  title  to  their  respective 
estates  or  interests  is  derived. 

When  property  is  transferred  in  trust  or  otherwise,  and  the  rights,  interests, 
or  estates  of  the  transferees  are  dependent  upon  contingencies  or  conditions 
whereby  they  may  be  wholly  or  in  part  created,  defeated,  extended  or  abridged, 
a  tax  shall  be  imposed  upon  such  transfer  at  the  lowest  rate  which  on  the 
happening  of  any  of  the  said  contingencies  or  conditions  would1  be  possible 
under  the  provisions  of  this  act,  and  such  tax  so  imposed  shall  be  due  and 
payable  forthwith  out  of  the  property  transferred;  provided,  however,  that 
on  the  happening  of  any  contingency  or  condition  whereby  the  said  property 


764  INHERITANCE   TAXATION. 

X 

or  any  part  thereof  is  transferred  to  a  person  or  corporation,  which  under  the 
provisions  of  this  act  is  required  to  pay  a  tax  at  a  higher  rate  than  the  tax 
imposed,  then  such  transferee  shall  pay  the  difference  between  the  tax  imposed 
and  the  tax  at  the  higher  rate,  and  the  amount  of  such  increased  tax  shall  be 
enforced  and  collected  as  provided  in  this  act. 

Estates  in  expectancy  which  are  contingent  or  defeasible  and  in  which  pro- 
ceedings for  determination  of  the  tax  have  not  been  taken  or  where  the  taxa- 
tion thereof  has  been  held  in  abeyance  shall  be  appraised  at  their  full 
undiminished  clear  value  when  the  persons  entitled  thereto  shall  come  into  the 
beneficial  enjoyment  or  possession  thereof  without  diminution  for  or  on 
account  of  any  valuation  theretofore  made  of  the  particular  estates  for  pur- 
poses of  taxation  upon  which  said  estates  in  expectancy  may  have  been 
limited.  Where  an  estate  for  life  or  for  years  can  be  devested  by  the  act  or 
omission  of  the  legatee  or  devisee,  it  shall  be  taxed  as  if  there  were  no 
possibility  of  such  devesting.  (Laws.  1903,  p.  73;  Laws  1909,  p.  639.) 

§  1363.     Notice  of  Appraisement — Witnesses — Report — Compensation. 

Sec.  14.  Every  such  appraiser  shall  forthwith  give  notice  by  mail  to  all 
persons  known  to  have  a  claim  or  interest  in  the  property  to  be  appraised, 
including  the  public  administrator  and  to  such  persons  as  the  county  court 
may  by  order  direct,  of  the  time  and  place  when  he  will  appraise  such  prop- 
erty. He  shall,  at  such  time  and  place,  appraise  the  same  at  its  fair  market 
value,  as  herein  prescribed,  and  for  that  purpose  the  said  appraiser  is 
authorized  to  issue  subpoenas  and  to  compel  the  attendance  of  witnesses  be- 
fore him  and  to  take  the  evidence  of  such  witnesses  under  oath  concerning 
such  property  and  the  value  thereof;  and  he  shall  make  report  thereof  and  of 
such  value  in  writing,  to  the  said  county  court,  together  with  the  depositions 
of  the  witnesses  examined,  and  such  other  facts  in  relation  thereto  and  to  the 
said  matter  as  the  said  county  court  may  order  or  require.  Every  appraiser 
shall  be  paid  on  the  certificate  of  the  county  court  at  the  rate  of  three  dollars 
per  day  for  every  day  actually  and  necessarily  employed  in  such  appraisal, 
and  his  actual  and  necessary  traveling  expenses  and  the  fees  paid  such  wit- 
nesses, which  fees  shall  be  the  same  as  those  now  paid  to  witnesses  subpoenaed 
to  attend  in  courts  of  record,  by  the  county  treasurer  out  of  any  funds  he  may 
have  in  his  hands  on  account  of  any  tax  imposed-  under  the  provisions  of  this 
act.  (Laws  1903,  p.  75;  Laws  1909,  p.  641.) 

§  1364.    Report  of  Special  Appraiser — Proceedings  Thereon — Computation 

of  Tax — Reappraisement. 

Sec.  15.  The  report  of  the  special  appraiser  shall  be  made  in  duplicate, 
one  of  which  duplicates  shall  be  filed  in  the  office  of  the  county  court  and  the 
other  in  the  office  of  the  attorney  general.  Upon  filing  such  report,  the  county 
court  shall  forthwith  give  twenty  days'  notice  by  mail  to  all  persons  known 
to  be  interested  in  the  estate,  including  the  attorney  general  and  public  ad- 
ministrator of  the  time  and  place  for  the  hearing  in  the  matter  of  auch  report, 
and  the  county  court,  from  such  report  and  other  proofs  relating  to  any  such 
estate,  shall  forthwith  at  the  time  so  fixed,  determine  the  cash  value  of  such 
estate  and  the  amount  of  tax  to  which  the  same  is  liable. 


WISCONSIN  STATUTE.  765 

Or  the  county  court  without  appointing  such  appraiser  upon  giving 
twenty  days'  notice  by  mail  to  all  persons  known  to  be  interested  in  the 
estate,  including  the  attorney  general  and  public  administrator  of  the  time 
and  place  o>f  hearing,  may  at  the  time  so  fixed  hear  evidence  and  determine 
the  cash  value  of  such  estate  and  the  amount  of  the  tax  to  which  the  same 
is  liable.  If  the  residence  or  postoffice  address  of  any  person  interested  in 
any  estate  is  unknown  to  the  executor,  administrator,  or  trustee,  notice  of 
the  hearing  in  the  matter  of  the  report  of  the  appraiser  or  notice  that  the 
county  court  without  appointing  such  appraiser  will  determine  the  cash 
value  of  an  estate,  shall  be  given  to  all  such  persons  by  publication  of  such 
notice  not  less  than  three  successive  weeks  prior  to  the  time  fixed  for  such 
hearing  or  determination  in  such  newspaper  published  within  the  co-unty  as 
the  court  shall  direct. 

If  the  county  court  without  appointing  such  special  appraiser  decide 
to  hear  evidence  as  to  the  cash  value  of  the  estate  for  inheritance  tax 
purposes,  the  court  may,  at  the  time  of  the  appointment  of  the  regular 
appraisers  of  the  estate,  on  its  own  x  motion,  designate  an  additional  third 
appraiser  to  represent  the  county  and  state,  and  such  additional  appraiser 
shall  report  the  inventory  and  appraisal  of  said  property  with  the  other 
appraisers;  or,  in  case  of  failure  to  agree,  in  a  separate  report,  and  be 
entitled  to  compensation  of  three  dollars  per  day  for  each  day  necessarily 
employed  in  such  appraisal  and  his  mileage,  which  fees  shall  be  paid  on 
the  certificate  of  the  county  judge  by  the  county  treasurer  out  of  any 
of  the  state's  inheritance  tax  funds  he  may  have  in  his  possession. 

The  commissioner  of  insurance  shall  on  application  of  any  county  court 
determine  the  value  of  any  such  future  or  contingent  estates,  income,  or 
interests  therein,  limited,  contingent,  dependent,  or  determinate  upon  the 
life  or  lives  of  the  person  or  persons  in  being  upon  the  facts  contained  in 
such  special  appraiser's  report  or  upon  the  facts  contained  in  the  county 
court's  finding  and  determination  and  certify  the  same  to  the  county  court, 
and  his  certificate  shall  be  presumptive  evidence  that  the  method  of  com- 
putation adopted  therein  is  correct. 

Upon  the  determination  by  the  county  court  as  to  the  value  of  any 
estate  which  is  taxable  under  the  inheritance  tax  laws  and  of  the  tax  to 
which  it  is  liable,  notice  shall  be  given  to  all  persons  known  to  be  in- 
terested, including  the  county  treasurer  and  the  state  treasurer  by  deliver- 
ing personally  or  mailing  to  each  a  copy  of  the  order  of  determination. 
Such  order  shall  include  a  statement  of  (1)  the  date  of  the  death  of  the 
decedent,  (2)  the  net  value  of  the  real  and  personal  property  to  be  trans- 
ferred, (3)  the  proportions  and  amounts  of  all  such  property  of  such  de- 
cedent, (4)  the  names  and  relationship  of  the  persons  entitled  to  receive 
the  same,  (5)  the  rates  and  amounts  of  inheritance  tax  to  which  each  of 
such  amounts  and  proportions  are  liable,  (6)  the  total  amount  of  tax  to 
be  paid,  and  (7)  a  statement  as  to  penalty  for  delay,  if  any,  and  shall  be 
substantially  in  the  form  to  be  prescribed  and  furnished  to  county  courts 
by  the  attorney  general.  And  no  final  judgment  shall  be  entered  in  such 
estates  until  due  proof  is  filed  with  the  court  showing  that  a  copy  of  such 
order  has  been  delivered  or  mailed  to  the  state  treasurer. 


766  4  INHERITANCE   TAXATION. 

If,  however,  it  appears  at  this  or  any  stage  of  the  proceedings  that  any 
of  such  parties  known  to  be  interested  in  the  estate  is  an  infant  or  an 
incompetent,  who  is  not  already  represented  by  a  guardian  ad  litem,  the 
county  court  shall  if  the  interest  of  such  infant  or  incompetent  is  presently 
involved  and  is  adverse  to  that  of  the  other  persons  interested  therein 
appoint  a  guardian  ad  litem  for  such  infant,  but  nothing  in  this  provision 
shall  effect  the  right  of  an  infant  over  fourteen  years  of  age  or  of  anyone 
on  behalf  of  an  infant  under  fourteen  years  of  age  to  nominate,  and  apply 
for  the  appointment  of  a  guardian  ad  litem  of  such  infant  at  any  stage  of 
the  proceedings. 

The  attorney  general  or  any  person  dissatisfied  with  the  appraisement  or 
assessment  and  determination  of  such  tax  may  apply  for  a  rehearing  thereof 
before  the  county  court  within  sixty  days  from  the  fixing,  assessing,  and 
determination  of  the  tax  by  the  county  court  as  herein  provided  on  filing  a 
written  notice  which  shall  state  the  grounds  of  the  application  for  a  re- 
hearing. The  rehearing  shall  be  upon  the  records,  proceedings,  and  proof  had 
and  taken  on  the  hearings  as  herein  provided  and  a  new  trial  shall  not  be 
had  or  granted  unless  specially  ordered  by  the  county  court. 

Within  two  years  after  the  entry  of  an  order  or  decree  of  the  county  court 
determining  the  value  of  an  estate  and  assessing  the  tax  thereon,  the  attorney 
general,  may,  if  he  believes  that  such  appraisal,  assessment,  or  determination 
has  been  fraudulently,  colhisively,  or  erroneously  made,  make  application  to 
the  circuit  judge  of  the  judicial  circuit  in  which  the  former  owner  of  such 
estate  resided  for  a  reappraisal  thereof.  The  circuit  judge  to  whom  such 
application  is  made  may  thereupon  appoint  a  competent  person  to  reappraise 
such  estate.  Such  appraiser  shall  possess  the  powers,  be  subject  to  the  duties, 
shall  give  the  notice  and  receive  the  compensation  provided  by  sections  13  and 
14.  Such  compensation  shall  be  payable  by  the  county  treasurer  out  of  any 
funds  he  may  have  on  account  of  any  tax  imposed  under  the  provisions  of 
this  act  upon  the  certificate  of  the  circuit  judge.  The  report  of  such  appraiser 
shall  be  filed  in  the  circuit  court  and  thereafter  the  same  proceedings  shall 
be  taken  and  had  by  and  before  such  circuit  court  as  herein  provided  to  be 
taken  and  had  by  and  before  the  county  court.  The  determination  and 
assessment  of  such  circuit  court  shall  supersede  the  determination  and  assess- 
ment of  the  county  court  and  shall  be  filed  in  the  office  of  the  state  treasurer 
;and  a  certified  copy  transmitted  to  the  county  court  of  the  proper  county. 
(Laws  1903,  p.  75;  Laws  1909,  p.  641;  Laws  1911,  p.  646.) 

$  1365.    Enforcement  of  Unpaid  Taxes. 

Sec.  16.  If  the  treasurer  of  any  county  shall  have  reason  to  believe  that 
.any  tax  is  due  and  unpaid  under  this  act  after  the  refusal  or  neglect  of  any 
person  liable  therefor  to  pay  the  same,  he  shall  notify  the  district  attorney 
of  the  county  in  writing  of  such  failure  or  neglect  and  such  district  attorney 
if  he  have  probable  cause  to  believe  that  such  tax  is  due  and  unpaid,  shall 
apply  to  the  county  court  for  a  citation  citing  the  person  liable  to  pay  such 
tax  to  appear  before  the  court  on  the  day  specified  not  more  than  three  months 
from  the  date  of  such  citation  and  show  cause  why  the  tax  should  not  be 


WISCONSIN  STATUTE.  767 

paid.  The  judge  of  the  county  court  upon  such  application  and  whenever 
it  shall  appear  to  him  that  any  such  tax,  accruing  under  this  act,  has  not 
been  paid  as  required  by  law,  shall  issue  such  citation  and  service  of  such 
citation  and:  the  time,  manner  and  proof  thereof,  and  the  hearing  and  de- 
termination thereof,  shall  conform  as  near  as  may  be  to  the  provisions  of  the 
laws  governing  probate  practice  of  this  state,  and  whenever  it  shall  appear 
that  any  such  tax  is  due  and  payable  and  the  payment  thereof  cannot  be 
enforced  under  the  provisions  of  this  act  in  said  county  court,  the  person 
or  corporation  from  whom  the  same  is  due  is  hereby  made  liable  to  the  county 
of  the  county  court  having  jurisdiction  over  such  estate  or  property  for  the 
amount  of  such  tax,  and  it  shall  be  the  duty  of  the  district  attorney  of  said 
county  in  the  name  of  such  county  to. sue  for  and  enforce  the  collection  of 
such  tax,  and  it  is  made  the  duty  of  said  district  attorney  to  appear  for  and 
act  on  behalf  of  any  county  treasurer,  who  shall  be  cited  to  appear  before 
any  county  court  under  the  provisions  of  thia  act.  (Laws  1903,  p.  78.) 

§  1366.    Duties  of  Public  Administrator. 

Sec.  17.  Where  no  application  for  administration  on  the  estate  of  any 
deceased  person  is  made  within  sixty  days  after  the  demise  of  such  person, 
and  such  estate  appears  to  come  under  the  provisions  of  the  inheritance  tax 
laws,  the  public  administrator  of  the  proper  county  shall  make  application  for 
and  shall  be  entitled  to  such  general  or  special  administration  of  such  estate 
as  may  be  necessary  for  the  purpose  of  the  adjustment  and  payment  of  the 
inheritance  tax  provided  by  law  and  shall  administer  the  same  as  other  estates 
are  administered. 

Where  it  appears  that  the  estate  of  a  deceased  person  subject  to  the  in- 
heritance tax  laws  was  transferred  in  contemplation  of  the  death  of  the 
grantor  without  the  adjustment  and  payment  of  the  inheritance  taxes  and  no 
application  for  such  adjustment  is  made  within  sixty  days  after  the  demise 
of  such  grantor,  the  public  administrator  of  the  proper  county  shall  make 
application  for  and  shall  be  entitled  to  such  general  or  special  administration 
as  may  be  necessary  for  the  purpose  of  the  adjustment  and  payment  of  the 
inheritance  taxes  provided  by  law  and  shall  administer  such  estate  the  same 
as  other  estates  are  administered  as  though  such  estate  had  not  been  trans- 
ferred by  the  grantor. 

It  shall  be  the  duty  of  the  public  administrator,  under  the  general  super- 
vision of  the  attorney  general  and  with  the  assistance  of  the  district  attorney, 
when  required  by  the  attorney  general  or  county  judge,  to  investigate  the 
estates  of  deceased  persons  within  his  county  and  to  appear  for  and  act  in 
behalf  of  the  county  and  state  in  the  county  court  in  such  estates  as  the  court 
may  in  its  discretion  deem  necessary,  and  for  such  services  the  public  ad- 
ministrator shall  be  entitled  to  five  per  centum  of  the  gross  inheritance  tax  as 
determined  in  each  such  estate,  to  be  paid  by  the  county  treasurer  out  of  the 
inheritance  tax  funds  upon  an  order  of  the  county  judge,  provided  that  the 
minimum  fee  for  each  such  estate  shall  not  be  less  than  three  dollars  and  the 
maximum,  fee  not  more  than  twenty-five  dollars. 

In  counties  containing  a  population  of  over  two  hundred  thousand,  an 
assistant  district  attorney,  compensated  as  otherwise  provided  by  law,  may 


768  INHERITANCE  TAXATION. 

by  order  of  the  county  court  be  designated  to  take  the  place  of  and  perform 
all  the  duties  of  the  public  administrator  relating  to  the  inheritance  tax  laws, 
except  as  provided  in  subdivisions  1  and  2  of  this  section.  Whenever  the 
assistant  district  attorney  is  designated  as  public  administrator  he  shall  re- 
ceive the  same  fees  as  the  public  administrator  in  other  counties,  provided, 
however,  that  all  such  fees  collected  by  him  as  public  administrator  shall  be 
turned  into  the  county  treasury.  (Laws  1903,  p.  78;  Laws  1909,  p.  644.) 

§  1367.     Repealed. 

Sec.  18.     Repealed.     (Laws  1909,  p.  646.) 

§  1368.    Report  of  County  Treasurer. 

Sec.  19.  Each  county  treasurer  shall  make  a  report  under  oath,  to  the 
state  treasurer,  on  January,  April,  July,  and  October  first  of  each  year,  of 
all  taxes  received  by  him  under  this  act,  stating  for  what  estate  and  by  whom 
and  when  paid.  The  form  of  such  report  may  be  prescribed  by  the  state 
treasurer.  He  shall  at  the  same  time  pay  the  state  treasurer  all  the  taxes 
received  by  Mm  under  this  act  and  not  previously  paid  into  the  state  treasuryr 
and  for  all  such  taxes  collected  by  him  and  not  paid  into  the  state  treasury 
within  thirty  days  from  the  times  herein  required,  he  shall  pay  interest  at 
the  rate,  cxf  ten  per  centum  per  annum.  (Laws  1903,  p.  79;  Laws  1909,  p, 
645.) 

§  1369.    Retention  of  Funds  by  Treasurer  for  Use  of  County. 

Sec.  20.  The  county  treasurer  shall  retain  for  the  use  of  the  county,  out 
of  all  taxes  paid  and  accounted  for  by  him  each  year  under  this  act  seven 
and  one-half  per  cent  on  all  sums'  so  collected  by  or  paid  to  said  treasurer. 
(Laws  1903,  p.  79;  Laws  1909,  p.  645.) 

§  1370.     Compromise  of  Taxes  in  Certain  Cases. 

Sec.  21.  The  public  administrator  with  the  consent  of  the  state  treasurer 
and  the  attorney  general,  expressed  in  writing,  is  authorized  to  enter  into- 
an  agreement  with  the  executor,  administrator,  or  trustee  of  any  estate  therein; 
situate,  in  which  remainders  or  expectant  estates  have  been  of  such  a  nature 
or  so  disposed  and  circumstanced  that  the  taxes  therein  were  held  not  pres- 
ently payable  or  where  the  interests  of  the  legatees  or  devisees  are  not  ascer- 
tainable  under  the  provisions  of  this  act,  and  to  compound  such  taxes  upon 
such  terms  as  may  be  deemed  equitable  and  expedient  and  to  grant  discharges 
to  said  executors,  administrators,  or  trustees  upon  the  payment  of  the  taxes- 
provided  for  in  such  composition,  provided,  however,  that  no  such  composition 
shall  be  conclusive  in  favor  of  said  executors,  administrators,  or  trustees  as 
against  the  interests  of  such  cestui  que  trust  as  may  possess  either  present 
rights  of  enjoyment  or  fixed,  absolute,  or  indefeasible  rights  of  future  enjoy- 
ment, or  of  such  as  would  possess  such  rights  in  the  event  of  the  immediate 
termination  of  particular  estates,  unless  they  consent  thereto  either  personally 
when  competent  or  by  guardian.  Composition  or  settlement  made  or  effected 
under  the  provisions  of  this  section,  shall  be  executed  in  triplicate  and  one 


WISCONSIN   STATUTE.  769 

copy  shall  be  filed  in  the  office  of  the  state  treasurer;  one  copy  in  the  office  of 
the  judge  of  the  county  court  in  which  the  tax  was  paid;  and  one  copy  to  be 
delivered  to  the  executors,  administrators,  or  trustees,  who  shall  be  parties 
thereto.  (Laws  1903,  p.  79;  Laws  1909,  p.  645.) 

§  1371.    Receipts  for  Payment  of  Tax. 

Sec.  22.  Any  person  shall,  upon  the  payment  of  the  sum  of  fifty  cents,  be 
entitled  to  a  receipt  from  .the  county  treasurer  of  any  county,  or  the  state 
treasurer,  or  at  his  option  to  a  copy  of  a  receipt  that  may  have  been  given 
by  such  county  treasurer  or  state  treasurer  for  the  payment  of  any  tax  under 
this  act,  under  the  official  seal  of  such  county  treasurer,  or  state  treasurer, 
which  receipt  shall  designate  upon  whose  estate  such  tax  shall  have  been  paid, 
by  whom,  and  whether  in  full  of  such  tax.  Such  receipt  may  be  recorded 
in  the  office  of  the  register  of  deeds  of  the  county  in  which  such  estate  is 
situate  in  a  book  to  be  kept  by  him  for  that  purpose,  which  shall  be  labeled 
"transfer  tax."  (Laws  1903,  p.  80;  Laws  1909,  p,  646.) 

§  1372.     Payment  to  State  Treasurer. 

Sec.  23.  All  taxes  levied  and  collected  under  this  act,  less  any  expenses 
of  collection,,  the  percentage  to  be  retained  by  the  county,  and  the  deduction 
authorized  under  this  act,  shall  be  paid  into  the  treasury  of  the  state  for 
the  use  of  the  state,  and  shall  be  applicable  to  the  expenses  of  the  state  gov- 
ernment and  to  such  other  purposes  as  the  legislature  may  by  law  direct. 
(Laws  1903,  p.  80;  Laws  1909,  p.  646.) 

§  1373.    Definition  of  Terms. 

See.  24.  The  words  "estate"  and  "property"  as  used  in  this  act  shall  be 
taken  to  mean  the  real  and  personal  property  or  interest  therein  of  the  tes- 
tator, intestate,  grantor,  bargainer,  vendor,  or  donor  passing  or  transferred  to 
individual  legatees,  devisees,  heirs,  next  of  kin,  grantees,  donees,  vendees,  or 
successors,  and  shall  include  all  personal  property  within  or  without  the 
state.  The  word  "transfer"  as  used  in  this  act  shall  be  taken  to  include  the 
passing  of  property  or  any  interest  therein,  in  possession  or  enjoyment,  present 
or  future,  by  inheritance,  descent,  devise,  succession,  bequest,  grant,  deed, 
bargain,  sale,  gift,  or  appointment  in  the  manner  herein  prescribed.  The  word 
"decedent"  as  used  in  this  act  shall  include  the  testator,  intestate,  grantor, 
bargainer,  vendor,  or  donor.  The  words  "county  treasurer,"  "public  admin- 
istrator" and  "district  attorney"  as  used  in  this  act  shall  be  taken  to  mean 
the  treasurer,  public  administrator  and  district  attorney  of  the  county  of  the 
county  court  having  jurisdiction  as  provided  in  section  12.  (Laws  1903,  p. 
80;  Laws  1909,  p.  646.) 

§  1374.    Compromise  of  Taxes  Accruing  Prior  to  This  Act. 

Sec.  25.     All  claims  for  taxes,  under  the  inheritance  tax  laws,  on  account 
of  any  transfer  by  any  nonresident  decedent,  which  accrued  prior  to  the  pas- 
sage of  this  act,  may  be  compounded,  settled,  and  adjusted  by  the  attorney 
49 


770  INHERITANCE   TAXATION. 

general,  subject  to  the  approval  of  the  governor  and  tax  commission,  upon 
such  terms  as  may  by  them  be  deemed  equitable  and  for  the  best  interests 
of  the  state.  (New  section  in  effect  July  3,  1911;  Laws  1911,  p.  647.) 

NOTE. — A  statute  was  enacted  and  took  effect  June  21,  1911,  conferring 
upon  the  tax  commission  certain  powers  and  duties  relative  to  the  adminis- 
tration and  enforcement  of  inheritance  taxes:  Laws  1911,  pp.  524,  525.  And 
a  statute  took  effect  July  1,  1909,  providing  for  the  appointment  by  the  county 
court  to  be  known  as  the  public  administrator:  Laws  1909,  p.  647.  Special 
administrators  and  special  administration  iii  the  matter  of  inheritance  taxes: 
Laws  1907,  pp.  584,  585.  Appointees  of  attorney  general  in  the  matter  of 
enforcing  inheritance  taxes:  Laws  1907,  pp.  51,  52. 


WYOMING  STATUTE.  771 


CHAPTER  LX. 
WYOMING  STATUTE. 

(Laws  of  1903,  pp.  95-100;  Compiled  Statutes  (WW),  pp.  646-651.) 

§  1375.  Transfers  Subject  to  Tax— Rates— Exemptions. 

§  1376.  Estates  for  Years  or  for  Life  and  Remainders. 

§  1377.  Time  for  Payment — Bond — Interest. 

§  1378.  Collection  of  Tax  by  Executor. 

§  1379.  Sale  of  Property  to  Pay  Tax. 

§  1380.  Payment  to  County  Treasurer — Receipts  and  Vouchers. 

§  1381.  Statement  to  County  Treasurer  of  Taxable  Transfers.. 

§  1382.  Refund  of  Tax  When  Debts  Proved  After  Distribution. 

§  1383.  Transfer  of  Stocks  or  Loans  by  Foreign  Executor. 

§  1384.  Refund  of  Tax  Paid  Erroneously. 

§  1385.  Appraisers  and  Appraisement. 

§  1386.  Appraiser  Taking  More  Than  Regular  Fees — Penalty. 

§  1387.  Jurisdiction  of  District  Court. 

§  1388.  Proceedings  to  Enforce  Tax. 

|  1389.  Notice  to  County  Attorney  of  Unpaid  Taxes. 

§  1390.  Statement  to  County  Treasurer  of  Delinquent  Taxpayers. 

%  1391.  Record  of  Estates  to  be  Kept  by  County  Clerk. 

§  1392.  Custody  and  Use  of  Taxes  Collected. 

§  1393.  Payment  to  State  Treasurer — Receipts  and  Reports. 

§  1394.  Copies  of  Receipts  to  be  Furnished — Lien  of  Tax. 

§  1375.     Transfers  Subject  to  Tax — Rates — Exemptions. 

Seo.  1.  All  property,  real,  personal  and  mixed,  which  shall  pass  by  will  or 
by  the  intestate  laws  of  this  state  from  any  person  who  may  die  seised  or 
possessed  of  the  same,  while  a  resident  of  this  state,  or  if  decedfent  was  not 
a  resident  of  this  state  at  the  time  of  his  death,  which  property  or  any  part 
thereof  shall  be  within  this  state  or  any  interest  therein  or  income  therefrom, 
which  shall  be  transferred  by  deed,  grant,  sale  or  gift  made  in  contemplation 
of  the  death  of  the  grantor  or  bargainer  or  intended  to  take  effect,  in  posses- 
sion or  enjoyment  after  such  death,  to  any  person  or  persons  or  to  any  body 
politic  or  corporate  in  trust  or  otherwise,  or  by  reason  whereof  any  person 
or  body  politic  or  corporate  shall  become  beneficially  entitled  in  possession 
or  expectation,  to  any  property  or  income  thereof,  shall  be  and  is  subject 
to  a  tax  at  the  rate  hereinafter  specified  to  be  paid  to  the  treasurer  of  the 
proper  county  for  the  use  of  the  state,  and  all  heirs,  legatees  and  devisees, 
administrators,  executors,  and  trustees  shall  be  liable  for  any  and  all  such 
taxes  until  the  same  shall  have  been  paid  as  hereinafter  directed.  When  the 
beneficial  interests  to  any  property  or  income  therefrom  shall  pass  to  or  for 
the  use  of  any  father,  mother,  husband,  wife,  child,  brother,  sister,  wife  or 
widow  of  the  son  or  the  husband  of  the  daughter  or  any  child  or  children 
adopted  as  such  in  conformity  with  the  laws  of  the.  state  of  Wyoming,  or  to 


772  INHERITANCE   TAXATION. 

any  person  to  whom  the  deceased,  for  not  less  than  ten  years  prior  to  death", 
stood  in  the  acknowledged  relation  of  a  parent,  or  to  any  lineal  descendant 
born  in  lawful  wedlock,  in  every  such  case  the  rate  of  tax  shall  be  two  dollars 
on  every  hundred  dollars  of  the  clear  market  value  of  such  property  received 
by  each  person,  and  at  and  after  the  same  rate  for  every  less  amount;  pro- 
vided, that  the  sum  of  ten  thousand  dollars  of  any  such  estate  shall  not  be 
subject  to  any  such  duty  or  taxes,  and  that  only  the  amount  in  excess  of 
ten  thousand  dollars  shall  be  subject  to  the  above  duty  or  tax.  In  all  other 
cases  the  rate  shall  be  as  follows:  On  each  and  every  hundred  dollars  of  the 
clear  market  value  of  all  property  five  dollars  and  at  the  same  rate  for  any 
less  amount;  provided,  that  an  estate  in  the  above  case  which  may  be  valued 
at  a  less  sum  than  five  hundred  dollars  shall  not  be  subject  to  any  such  duty 
or  tax.  (Laws  1903,  p.  95;  Comp.  Stats.  (1910),  p.  646.) 

§  1376.     Estates  for  Years  or  for  Life  and  Remainders. 

Sec.  2.  When  any  person  shall  bequeath  or  devise  any  property  or  interest 
therein  or  income  therefrom  to  mother,  father,  husband,  wife,  brother,  sister, 
the  widow  of  the  son,  husband  of  the  daughter,  or  a  lineal  descendant  during 
the  life  or  for  a  term  of  years  and  remainder  to  the  collateral  heir  of  the 
descendant,  or  the  stranger  in  blood  or  to  the  body  politic  or  corporate  at  their 
decease,  or  on  the  expiration  of  such  term,  the  said  life  estate  or  estates  for 
a  term  of  years  shall  not  be  subject  to  any  tax  and  the  property  so  passing 
shall  be  appraised  immediately  after  the  death  at  what  was  the  fair  market 
value  thereof  at  the  time  of  the  death  of  the  decedent  in  the  manner  here- 
inafter provided,  and  after  deducting  therefrom  the  value  of  said  life  estate, 
or  te,rm  of  years,  the  tax  prescribed  by  this  act  on  the  remainder  shall  be 
immediately  due  and  payable  to  the  treasurer  of  the  proper  county,  and,  to- 
gether with  the  interest  thereon  shall  be  and  remain  a  lien  on  said  property 
until  the  same  is  paid;  provided,  that  the  person  or  persons  or  body  politic 
or  corporate  beneficially  interested  in  the  property  chargeable  with  said  tax 
elect  not  to  pay  the  same  until  they  shall  come  into  the  actual  possession  or 
enjoyment  of  such  property;  then,  in  that  case  said  person  or  persons  or  body 
politic  or  corporate  shall  give  a  bond  to  the  people  of  the  state  of  Wyoming, 
in  a  penalty  three  times  the  amount  of  the  tax  arising  upon  such  estate  with 
such  sureties  as  the  district  judge  may  approve,  conditioned  for  the  payment 
of  the  said  tax,  and  interest  thereon,  at  such  time  or  period  as  they  or  their 
representatives  may  come  into  the  actual  possession  or  enjoyment  of  said  prop- 
erty, which  bond  shall  be  filed  in  the  office  of  the  county  clerk  of  the  proper 
county;  provided,  further,  that  such  person  shall  make  a  full,  verified  return 
of  said  property  to  said  district  judge,  and  file  the  same  in  his  office  within 
one  year  from  the  death  of  the  decedent,  and  within  that  period  enter  into 
such  securities  and  renew  the  same  each  five  years.  (Laws  1903,  p.  96;  Comp. 
Stats.  (1910),  p.  646.) 

§  1377.     Time  for  Payment — Bond — Interest. 

Sec.  3.  All  taxes  imposed  by  this  act,  unless  otherwise  herein  provided 
for,  shall  be  due  and  payable  at  the  death  of  the  decedent,  and  interest  at 
the  rate  of  six  per  cent  per  annum  shall  be  charged  and  collected  thereon 


WYOMING  STATUTE.  773 

for  such  time  as  said  taxes  are  not  paid;  provided,  that  if  said  tax  is  paid 
within  six  months,  from  the  accruing  thereof,  interest  shall  not  be  charged  or 
collected  thereon,  but  a  discount  of  five  per  cent  shall  be  allowed  and  deducted 
from  said  tax,  and  in  all  cases  where  the  executors,  administrators  or  trustees 
do  not  pay  such  tax  within  one  year  from  the  death  of  the  decedent,  they 
shall  be  required  to  give  a  bond  in  the  form  and  to  the  effect  prescribed  in 
section  two  of  this  act  for  the  payment  of  said  tax,  together  with  interest. 
(Laws  1903,  p.  96;  Comp.  Stats.  (1910),  p.  647.) 

§  1378.     Collection  of  Tax  by  Executor. 

Sec.  4.  Any  administrator,  executor  or  trustee  having  any  charge  or  trust 
in  legacies  or  property  for  distribution  subject  to  the  said  tax  shall  deduct 
the  tax  therefrom,  or  if  the  legacy  or  property  be  not  money  he  shall  collect 
the  tax  thereon  upon  the  appraised  value  thereof  from  the  legatee  or  person 
entitled  to  »uch  property,  and  he  shall  not  deliver  or  be  compelled  to  deliver 
any  specific  legacy  of  property  subject  to  tax  to  any  person  until  he  shall 
have  collected  the  tax  thereon,  and  whenever  any  such  legacy  shall  be  charged 
upon  or  payable  out  of  real  estate,  the  executor,  administrator  or  trustee, 
before  paying  the  same  shall  deduct  said  tax  therefrom  and  pay  the  same  to 
the  county  treasurer  for  the  use  of  the  state,  and  the  same  shall  remain  a 
charge  o>n  such  real  estate  until  paid,  and  the  payment  thereof  shall  be  en- 
forced by  the  executor,  administrator  or  trustee  in  the  same  manner  that  the 
said  payment  of  said  legacies  might  be  enforced;  if,  however,  such  legacy  be 
given  in  money  to  any  person  for  a  limited  period,  he  shall  retain  the  tax 
upon  the  whole  amount,  but  if  it  be  not  in  money,  he  shall  make  application 
to  the  court  having  jurisdiction  of  his  accounts  to  make  an  apportionment 
if  the  case  requires  it  of  the  sum  to  be  paid  into  his  hands  by  such  legatees, 
and  for  such  further  order  relative  thereto  us  the  case  may  require.  (Laws 
1903,  p.  97;  Comp.  Stats.  (1910),  p.  647.) 

§  1379.     Sale  of  Property  to  Pay  Tax. 

Sec.  5.  All  executors,  administrators,  and  trustees  shall  have  full  power  to 
sell  so  much  of  the  property  of  the  decedent  as  will  enable  them  to  pay  said 
tax,  in  the  same  manner  as  they  may  be  enabled  to  do  by  law,  for  the  pay- 
ment of  debts  for  their  testators  and  intestates,  and  the  amount  of  said  tax 
shall  be  paid  as  hereinafter  directed.  (Laws  1903,  p.  97;  Comp.  Stats.  (1910), 
p.  647.) 

§  1380.     Payment  to  County  Treasurer — Receipts  and  Vouchers. 

Sec.  6.  Every  sum  of  money  retained  by  any  executor,  administrator  or 
trustee,  or  paid  into  his  hands  for  any  tax  on  any  property,  shall  be  paid 
by  him  within  thirty  days-  thereafter  to  the  treasurer  of  the  proper  county, 
and  the  said  treasurer,  or  treasurers  shall  give,  and  every  executor,  adminis- 
trator or  trustee  shall  take,  duplicate  receipts  from  him  of  said  payments, 
one  of  which  receipts  he  shall  immediately  fend  to  the  state  treasurer  whose 
duty  it  shall  be  to  charge  the  treasurer  so  receiving  the  tax  with  the  amount 
thereof,  and  shall  seal  said  receipt  with  the  seal  of  his  office  and  countersign 
the  same  and  rgturn  it  to  the  executor,  administrator  or  trustee,  whereupon  it 


774  INHERITANCE  TAXATION. 

shall  b«  a  proper  voucher  in  the  settlement  of  his  accounts,  but  the  executor, 
administrator  or  trustee  shall  not  be  entitled  to  credit  in  his  accounts  or  be 
discharged  from  liability  for  such  tax  unless  he  shall  produce  a  receipt  so 
sealed  and  countersigned  by  the  treasurer  and  a  copy  thereof  certified  by  him. 
(Laws  1903,  p.  97;  Comp.  Stats.  (1910),  p.  648.) 

§  1381.     Statement  to  County  Treasurer  of  Taxable  Transfers. 

Sec.  7.  Whenever  any  of  the  real  estate  of  which  any  decedent  may  die 
seised  shall  pass  to  any  body  politic  or  corporate,  or  to  any  person  or  per- 
sons, or  in  trust  for  them,  or  some  of  them,  it  shall  be  the  duty  of  the 
executor,  administrator  or  trustee  of  such  decedent  to  give  information  thereof 
in  writing  to  the  treasurer  of  the  county  where  said  real  estate  is  situated, 
within  six  months  after  they  undertake  the  execution  of  their  duties,  or  if  the 
fact  be  not  known  to  them  within  that  period,  then  within  one  month  after 
the  same  shall  have  come  to  their  knowledge.  (Laws  1903,  p.  97;  Comp. 
Stats.  (1910),  p.  6480 

§  1382.    Refund  of  Tax  When  Debts  Proved  After  Distribution. 

Sec.  8.  Whenever  debts  shall  be  proved  against  the  estate  of  the  decedent 
after  distribution  of  legacies  from  which  the  inheritance  tax  has  been  deducted 
in  compliance  with  this  act,  and  the  legatee  is  required  to  refund  any  portion 
of  the  legacy,  a  due  proportion  of  the  said  tax  shall  be  repaid  to  him  by  the 
executor  or  administrator,  if  the  said  tax  has  not  been  paid  into  the  state  or 
county  treasury,  or  by  the  county  treasurer  if  it  has  been  so  paid.  (Laws 
p.  98;  Comp.  Stats.  (1910),  p.  648.) 


§  1383.     Transfer  of  Stocks  or  Loans  by  Foreign  Executor. 

Sec.  9.  Whenever  any  foreign  executor  or  administrator  shall  assign  or 
transfer  any  stocks  or  loans  in  this*  state  standing  in  the  name  of  decedent; 
or  in  trust  for  decedent,  which  shall  be  liable  to  the  said  tax,  such  tax  shall 
be  paid  to  the  treasury  or  treasurer  of  the  proper  county  on  the  transfer 
thereof;  otherwise  the  corporation  making  such  transfer  shall  become  liable 
to  pay  such  taxes*.  (Laws  1903,  p.  98;  Comp.  Stats.  (1910),  p.  648.) 

§  1384.    Refund  of  Tax  Paid  Erroneously. 

Sec.  10.  When  any  amount  of  said  tax  shall  have  been  paid  erroneously 
to  the  state  treasurer  it  shall  be  lawful  for  him  on  satisfactory  proof  ren- 
dered to  him  by  said  county  treasurer  of  said  erroneous  payments  to  refund 
and  pay  to  the  executor,  administrator  or  trustee,  person  or  persons,  who  may 
have  paid  any  such  tax  in  error,  the  amount  of  such  tax  so  paid;  provided, 
that  all  applications  for  the  repayment  of  said  tax  shall  be  made  within  two 
years  from  the  date  of  said  payment.  (Laws  1903,  p.  98;  Comp.  Stats.  (1910), 
p.  648.) 

§  1385.    Appraisers  and  Appraisement. 

Se(.  11.  In  order  to  fix  the  value  of  property  of  persons  whose  estate 
shall  be  subject  to  the  payment  of  said  tax,  the  district  judge,  on  the  appli- 
cation of  any  persons  interested  in  the  estate,  including  the  state,  or  upon  his 


WYOMING  STATUTE.  775 

own  motion,  shall  appoint  some  competent  person  as  appraiser  as  often  as,  or 
whenever  occasion  may  require,  whose  duty  it  shall  be  forthwith  to  give 
notice  by  mail  to  all  persons  known  to  have  or  claim  an  interest  in  such 
property,  and  to  such  persons  as  the  district  judge  may  by  order  direct,  of 
the  time  and  place  at  which  he  will  appraise  such  property,  and  at  such  time 
and  place  to  appraise  the  same  at  a  fair  market  value,  and  for  that  purpose 
the  appraiser  is  authorized  by  leave  of  the  district  judge  to  use  subpoenas 
for  and  to  compel  the  attendance  of  witnesses  before  him,  and  to  take  the  evi- 
dence of  such  witnesses  under  oath  concerning  soich  property  and  the  value 
thereof,  and  he  shall  make  a  report  thereof  and  of  such  value  in  writing  to 
the  district  court  with  the  depositions  of  the  witnesses  examined  and  such 
other  facts  in  relation  thereto  as  the  district  court  may  by  order  require  to 
be  filed  in  the  office  of  the  clerk  of  said  district  court,  and  from  this  report 
the  said  district  court  shall  forthwith  make  an  order  and  fix  the  then  cash 
value  of  all  estate,  annuities  and  life  estates  or  terms  of  years  growing  ouf 
of  said  estate,  and  the  tax  to  which  the  same  is  liable,  and  shall  immediately 
give  notice  by  mail  to  all  parties  known  to  be  interested  therein.  Any  person 
or  persons  dissatisfied  with  the  appraisement  or  assessment  may  appeal  there- 
from to  the  district  court  of  the  proper,  county  within  sixty  days  after  the 
making  and  filing  of  such  appraisement  or  assessment,  on  giving  good  and 
sufficient  security  to  the  satisfaction  of  the  district  judge  to  pay  all  costs 
together  with  whatever  taxes  that  shall  be  fixed  by  the  district  court.  The 
said  appraiser  shall  be  paid  by  the  county  treasurer  out  of  any  funds  he  may 
have  in  his  hands  on  account  of  said  tax,  on  the  certificate  of  the  district 
judge  at  the  rate  of  three  dollars  per  day  for  every  day  actually  and  neces- 
sarily employed  in  said  appraisement  together  with  his  actual  and  necessary 
traveling  expenses,  and  the  witnesses  subpoenaed  by  said  appraiser  shall  b« 
paid  such  fees  as  now  provided  by  law.  '  (Laws  1903,  p.  98;  Comp.  Stats. 
(1910),  p.  649.) 

§  1386.    Appraiser  Taking  More  Than  Regular  Fees — Penalty. 

Sec.  12.  Any  appraiser  appointed  by  this  act  who  shall  take  any  fees  or 
reward  from  any  executor,  administrator,  trustee,  legatee,  next  of  kin  or 
heir  of  any  decedent,  or  from  any  other  person  liable  to  pay  said  tax,  or  any 
portion  thereof,  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  in 
any  court  having  jurisdiction  of  misdemeanors  he  shall  be  fined  not  less  than 
two  hundred  and  fifty  dollars,  nor  more  than  five  hundred  dollars,  and  im- 
prisoned not  exceeding  ninety  days,  and  in  addition  thereto  the  district  judge 
shall  dismiss  him  from  such  service.  (Laws  1903,  p.  99;  Comp.  Stata.  (1910), 
p.  649.) 

§  1387.    Jurisdiction  of  District  Court. 

Sec.  13.  The  district  court  in  the  county  in  which  the  real  property  is 
situated,  of  the  decedent  who  was  not  a  resident  of  the  state,  or  in  the  county 
of  which  the  deceased  was  a  resident  at  the  time  of  his  death,  shall  have 
jurisdiction  to  hear  and  determine  all  questions  in  relation  to  the  tax  arising 
under  the  provisions  of  this  act,  and  the  district  court  first  acquiring  juris- 


776  INHERITANCE   TAXATION. 

diction  hereund«r  shall  retain  the  same  to  the  exclusion  of  every  other.     (Laws 
1903,  p.  99;  Comp.  Stats.  (1910),  p.  649.) 

§  1388.     Proceedings  to  Enforce  Tax. 

Sec.  14.  If  it  shall  appear  to  the  district  court  that  any  tax  accruing 
under  this  act  has  not  been  paid  according  to  law,  it  shall  issue  a  summons 
summoning  the  persons  interested  in  the  property  liable  to  the  tax  to  appear 
before  the  court  on  a  day  certain  not  more  than  three  months  after  the  date 
of  such  summons,  to  show  cause  why  said  tax  should  not  be  paid.  The  process, 
practice  and  pleadings  and  the  hearing  and  determination  thereof,  and  the 
judgment  in  said  court  in  such  cases,  shall  be  the  same  as  those  now  provided 
or  which  may  hereafter  be  provided  in  probate  cases  in  the  district  courts  in 
this  state,  and  the  fees  and  costs  in  such  cases  shall  be  the  same  as  in  probate 
cases  in  the  district  courts  of  this  state.  (Laws  1903,  p.  99;  Comp.  Stats. 
(1910),  p.  649.) 

§  1389.     Notice  to  County  Attorney  of  Unpaid  Taxes. 

Sec.  15.  Whenever  the  treasurer  of  any  county  shall  have  reason  to  believe 
that  any  tax  is  due  and  unpaid  under  this  act,  after  the  refusal  or  neglect 
of  the  persons  interested  in  the  property  liable  to  pay  said  tax  to  pay  the 
same,  he  shall  notify  the  county  attorney  of  the  proper  county,  in  writing,  of 
such  refusal  to  pay  said  tax,  and  the  county  attorney  so  notified,  if  he  has 
proper  cause  to  believe  a  tax  is  due  and  unpaid,  shall  prosecute  the  proceeding 
in  the  district  court  in  the  proper  county,  as  provided  in  section  fourteen 
of  this  act  for  the  enforcement  and  collection  of  such  tax,  and  in  such  case 
said  court  shall  allow  as  costs  in  the  said  case  such  fees  tO'  said  attorney 
as  it  may  deem  reasonable.  (Laws  1903,  p.  99;  Comp.  Stats.  (1910),  p.  650.) 

§  1390.     Statement  to  County  Treasurer  of  Delinquent  Taxpayers. 

Sec.  16.  The  clerk  of  the  district  court  of  each  county  shall  every  three 
months  make  a  statement  in  writing  to  the  county  treasurer  of  the  county 
of  the  property  from  which,  or  the  party  from  whom  he  has  reason  to  believe 
a  tax  under  this  act  is  due  and  unpaid.  (Laws  1903,  p.  99;  Comp.  Stats. 
(1910),  p.  650.) 

§  1391.     Record  of  Estates  to  be  Kept  by  County  Clerk. 

Sec.  17.  The  county  commissioners  of  each  county  shall  furnish  to  each 
county  clerk  a  book  in  which  he  shall  enter  the  returns  made  by  appraisers 
for  cash  value  of  annuities,  life  estates  and  terms  of  years  and  other  property 
fixed  by  the  district  court  in  his  county  and  the  tax  assessed  thereon,  and  the 
amounts  of  any  receipts  for  payment  thereof  filed  with  him,  which  book  shall 
be  kept  in  the  office  of  the  county  clerk  as  a  public  record.  (Laws  1903,  p. 
100;  Comp.  Stats.  (1910),  p.  650.) 

§  1392.    Custody  and  Use  of  Taxes  Collected. 

Sec.  18.  The  county  treasurer  of  each  county  shall  keep  all  money  collected 
under  the  provisions  of  this  act  in  a  separate  and  special  fund  to  be  expended 
under  the  direction  of  the  county  commissioners  of  each  county,  for  the  sole 


WYOMING  STATUTE.  777 

purpose  of  the  permanent  improvement  of  the  county  road.  Such  roads  shall 
not  be  built  within  the  corporate  limits  of  any  city  or  village,  but  may  begin 
at  the  limit  of  any  city  or  village  and  extending  therefrom  in  the  direction 
most  traveled  by  the  public,  to  be  determined  upon  by  the  said  county  commis- 
sioners; provided,  that  such  improvements  may  be  made  from  the  limit  of  any 
city  of  the  metropolitan  or  first  class  and  through  a  city  of  the  second  class 
or  village,  where  the  road  so  determined  upon  to  be  improved  is  a  .main  road 
between  the  county  and  such  city  of  the  metropolitan  or  first  class.  All  con- 
tracts for  such  permanent  improvements  shall  be  let  by  the  said  board,  by 
competitive  bids  after  the  plans  and  specifications  therefor  drawn  by  the 
county  surveyor  or  engineer  have  been  filed  with  the  county  clerk  of  each  re- 
spective county.  All  bids  for  the  construction  of  such  roads  shall  be  deposited 
with  the  county  clerk  of  the  respective  counties  and  opened  by  him  in  the 
presence  of  the  county  commissioners,  then  filed  with  the  county  clerk.  All 
such  permanent  roadbeds  shall  not  be  less  than  twelve  feet,  nor  more  than 
sixteen  feet  in  width  and  shall  be  constructed  of  the  most  durable  and  ap- 
proved material  and  the  remaining  part  of  said  road  shall  be  constructed  at 
one  side  of  the  said  permanent  part  and  be  used  as  a  dirt  road;  provided, 
that  it  shall  be  lawful  for  the  county  commissioners  of  any  county  having 
a  population  of  not  more  than  thirty  thousand,  to  use  said  fund  in  the  manner 
herein  provided  for  the  improvement  of  any  grade,  bridge,  cut,  fill,  or  dirt 
road  leading  into  any  city  or  village  within  said  county;  provided,  that  all 
money  hereafter  paid  by  the  various  county  treasurers  to  the  state  treasurer, 
under  the  provisions  of  this  chapter  shall  be,  upon  proper  vouchers  signed  by 
the  county  clerk  and  county  treasurer,  paid  back  to  the  said  county  from 
which  said  tax  was  received  and  said  money  when  so  refunded  by  the  state 
treasurer  shall  be  placed  in  the  special  fund  heretofore  mentioned  in  each 
county  and  shall  be  expended  in  like  manner  and  for  like  purposes  as  herein- 
above  specified.  (Laws  1903,  p.  100;  Comp.  Stats.  (1910),  p.  650.) 

§  1393.    Payment  to  State  Treasurer — Receipts  and  Reports. 

Sec.  19.  The  treasurer  of  each  county  shall  collect  and  pay  the  state  treas- 
urer all  taxes  that  may  be  due  and  payable  under  this  act,  who  shall  give  him 
a  receipt  therefor,  of  which  collection  and  payment  he  shall  make  a  report 
under  oath  to  the  state  auditor  on  the  first  Mondays  in  March  and  September 
of  each  year,  stating  for  what  estate  paid,  and  in  such  form  and  containing 
such  particulars  as  the  auditor  may  prescribe,  and  for  all  said  taxes  collected 
by  him  and  not  paid  to  the  state  treasurer  by  the  first  day  of  October  and 
April  of  each  year  he  shall  pay  the  interest  at  the  rate  of  ten  per  cent  per 
annum.  (Laws  1903,  p.  100;  Comp.  Stats.  (1910),  p.  650.) 

§  1394.     Copies  of  Receipts  to  be  Furnished — Lien  of  Tax. 

Sec.  20.  Any  person  or  body  politic  or  corporate,  shall  upon  the  payment 
of  the  sum  of  fifty  cents,  be  entitled  to  a  receipt  from  the  county  treasurer 
of  any  county  or  the  copy  of  the  receipt  at  his  option,  that  may  have  been 
given  by  said  treasurer  for  the  payment  of  any  tax  under  this  act,  to  be 
sealed  with  the  seal  of  his  office,  which  receipt  shall  designate  on  what  real 
property,  if  any,  of  which  any  deceased  may  havg  died  seised,  said  tax  has 


778  INHERITANCE   TAXATION. 

been  paid  and  by  whom  paid,  ami  whether  or  not  it  is  in  full  of  said  tax, 
and  said  receipt  may  be  recorded  in  the  clerk's  office  of  said  county  in  which 
the  property  may  be  situated  in  the  book  to  be  kept  by  said  clerk  for  such 
purpose.  The  lien  of  the  inheritance  tax  provided  herein  shall  continue  until 
the  said  tax  is  settled  and  satisfied;  provided,  that  said  lien  shall  be  limited 
to  the  property  chargeable  therewith;  and  provided  further,  that  all  inherit- 
ance taxes  shall  be  sued  for  within  five  years  after  they  are  due  and  legally 
demandable;  otherwise  they  shall  be  presumed  to  have  been  paid,  and  such  lien 
shall  be  removed,  (Laws  1903,  p.  100;  Comp.  Stats.  (1910),  p.  651.) 


INDEX. 


[References  are   to   Pages.] 

Account  of  Executor. 

settlement  or  allowance  of,  before  payment  of  tax,  272,  273. 

Accrual  Tax. 

time  of,  341,  342. 

Acknowledged  Relation  of  Parent  and  Child. 

persons  standing  in,  whether  subject  to  tax,  182-184. 

Actions. 

to  enforce  tax,  339,  354. 

Administration  Expenses, 
deduction  of,  317-325. 

Administrators.     See  Executors  and  Administrators, 
temporary,  deduction  of  fees  and  disbursements,  318. 

Adopted  Children. 

child  of,  whether  exempt  from  tax,  181. 
exemption  from  tax,  180-182. 
retrospective  statute  affecting  exemption,  181. 
widow  of,  whether  exempt,  181. 

Adopted  Statutes. 

construing  statutes  adopted  from  another  state,  49. 

Advancements. 

whether  taxable,  104, 105. 

Affidavit. 

form  of  affidavit  of  mailing  notice,  360. 

Aged. 

exemption  of  gift  to  home  for,  203-205. 

(779) 


780  INDEX. 

[References  are  to  Pages.] 

Aliens. 

discrimination  against,  38,  259-266. 

gift  of  securities  to,  242. 

tax  on  transfer  to,  226,  227. 

transfers  to,  in  absence  of  treaty,  258,  259. 

transfers  to,  under  various  treaties,  259-266. 

Almshouse. 

exemption  of  gift  to,  203. 

Annuities. 

fund  liable  for  tax  upon,  124,  145. 
taxation  of,  121-123. 

Antenuptial  Agreement. 

taxation  of  transfer,  163. 

Appeals. 

bonds  or  undertaking,  336. 
forms  of  notice,  368,  370. 
form  of  order,  369.  « 

notice  of  appeal,  335. 
persons  who  may  appeal,  334. 
review  of  proceedings,  336-338. 
questions  reviewable,  336-338. 
time  for  appeal,  335. 
who  may  appeal,  334. 

Applications.     See  Forms. 

Appraisers  and  Appraisement. 

appointment  of  appraisers,  295,  296. 
action  by  surrogate  on  his  own  motion,  296. 
actual  market  value,  what  is,  303. 
assets  distributed  in  another  state,  302. 
compromised  claim,  304. 
conclusiveness  of  proceedings,  326-333. 
corporate  stock,  ascertaining  value  of,  305-307. 
deductions  to  be  made.     See  Deductions. 


INDEX.  ,781 

[References  are  to  Pages.] 

Appraisers  and  Appraisement  (Continued), 
doubtful  claims,  303-305. 
due  process  of  law  in  giving  notice,  298-300. 
evidence,  sufficiency,  302. 
evidence  of  value  of  stock,  305-307. 
form  of  petition  for  appointment,  356-358. 
form  of  order  appointing,  358. 
form  of  oath  of  appraiser,  359. 

form  of  affidavits  for  appraisal  of  nonresidents'  estates,  380. 
form  of  notice  of  assessment,  368. 
form  of  order  fixing  tax,  367. 
form  of  report  of  appraiser,  362. 
form  of  subpoena,  360. 

form  of  affidavit  of  mailing  notice  of  hearing,  360. 
form  of  notice  of  hearing,  359. 

forms  in  proceedings  by  district  attorney,  386-390. 
fair  market  value,  what  is,  303. 
improvements  on  property  owned  in  common,  303. 
jurisdiction  of  court,  289-291. 
jurisdiction  as  depending  on  domicile  of  decedent  and  situs  of 

property,  297. 

law  governing  in  case  of  change  of  statute,  297,  298. 
litigated  claims,  303-305. 
market  value  defined,  303. 
net  succession  only  is  taxed,  301,  311. 
nonresidents,  venue  of  proceedings,  297. 
notes,  valuation  of,  303-305. 
notice  of  proceedings,  299-301. 
powers  of  appraisers  in  making  deductions,  312. 
property  to  be  included  in  appraisement,  301-303. 
property  exempt  from  general  taxation,  303. 
property  lost,  destroyed  or  misappropriated,  325, 
property  outside  of  state,  302. 
reappraisement  of  property,  309,  326. 
report  of  appraiser,  304,  308. 
second  appraisement,  309,  326. 
stock,  determination  of  value,  305-307. 


782  INDEX. 

[References  are  to  Pages. ] 

Appraisers  and  Appraisement  (Continued), 
time  of  which  valuation  determined,  307. 
time  within  which  surrogate  to  act,  296. 
valuation,  in  general,  303. 
valuation  of  property,  collusiveness,  331. 
valuation,  time  of  which  determined,  307. 
value  of  corporate  stock,  305-307. 
venue  of  proceedings,  297. 
what  law  governs,  297,  298. 
worthless  account  not  included,  302. 
See  Deductions. 

Arkansas  Statute. 

transfers  subject  to  tax,  391. 

persons  liable  for  tax,  lien,  interest,  payment,  391. 

rate  of  taxation  in  case  of  lineal  descendants,  392. 

rate  of  taxation  in  case  of  collateral  relatives,  392. 

rate  of  taxation  in  other  cases,  392. 

estates  for  years  or  life,  remainders,  392. 

bequests  to  executors  in  lieu  of  compensation,  392. 

time  for  payment,  interest,  392. 

inventory,  collection  of  tax,  393. 

legacies  charged  upon  real  estate,  collection  of  tax,  393. 

valuation  and  appraisement  of  property,  393. 

jurisdiction  of  probate  court,  394. 

account  of  executor  not  settled  until  tax  paid,  394. 

duty  of  attorney  general,  appointment  and  compensation  of 

attorneys,  394. 
repeal  of  conflicting  acts,  394. 

Art  Gallery  or  Library. 

exemption  of  gift  to,  199. 

Assessment  of  Tax. 

in  general,  294-310. 
conclusiveness  of,  326-330. 
jurisdiction  of  court,  289-291. 
notice  of  proceedings,  298-300. 

See  Forms;  Appraisers  and  Appraisement. 


INDEX.  .783 

(Reference!  are  to 


Assignee. 

liability  for  tax,  273. 

Assignment  of  Legacy. 
rate  of  tax,  284. 

Attorney  Fees. 

deductions  on  account  of,  318-321!. 
in  actions  to  enforce  tax,  344-346. 

Bank  Deposits. 

when  taxable,  91,  92. 

Basis. 

of  right  to  impose  tax,  9-15. 

Bavaria. 

treaty  with,  tax  against  aliens,  260,  261. 

Bishop. 

exemption  of  gift  to,  202. 

Bonds. 

are  taxable,  93. 

situs  of,  239-246. 

United  States  bonds,  whether  taxable,  94-96. 

on  appeal,  336. 

Brokers. 

deduction  of  commissions,  323. 

Burial  Lots. 

bequests  for  whether  taxable,  87. 

California  Statute. 

transfers  subject  to  tax,  lien,  persons  liable,  market  value, 

power  of  appointment,  395. 
classification    of   beneficiaries,    tax   rates   on   estates   under 

$25,000,  396. 


784  INDEX. 

[Reference*  ar»  to  Pages.] 

California  Statute  (Continued). 

rates  of  taxation  on  estates  over  $25,000,  397. 

exemptions  from  taxation,  397. 

estates  for  years  or  life,  remainders  and  contingent  interests, 

398. 

bequests  to  executors  in  lieu  of  compensation,  399. 
time  for  payment  of  tax,  interest  and  discount,  399. 
penalty  for  nonpayment,  399. 
collection  of  tax  by  executor  or  trustee,  399. 
sale  of  property  to  pay  tax,  400. 

payment  to  county  treasurer,  duty  of  controller,  receipts,  400. 
refunding  excess  payments,  400. 

transfer  or  delivery  of  stock,  securities,  deposits,  notice,  401. 
appraisers  and  appraisement,  402. 
jurisdiction  of  courts,  404. 
citation  to  delinquent  taxpayers,  404. 
actions  to  enforce  tax  and  lien,  quieting  title,  405. 
notice  to  district  attorney  that  tax  is  due,  special  attorneys, 

406. 

costs  of  proceedings  against  delinquents,  407. 
payment  by  county  to  state  treasurer,  407. 
commissions  of  county  treasurer,  407. 
employment  of  attorney  by  county  treasurer,  407. 
employment  of  counsel  by  state  auditor,  408. 
disposition  of  taxes  collected,  408. 

refusal  of  officers  to  discharge  duties,  penalty  therefor,  409. 
definitions  of  words  used  in  statutes,  408. 
repeal  of  prior  statutes,  409. 

Causa  Mortis. 

taxation  of  gift,  159,  160. 

Cemetery  Associations. 

exemption  of  gifts  to,  207,  208. 

Charities. 

exemption  of,  187-209. 

exemptions,  constitutionality  of,  41.  » 


INDEX.  785 

[Reference*  are  to  Pages.] 

Charities  (Continued). 

foreign  institutions,  discriminations,  193-195. 
tax  on,  not  against  policy  of  law,  8. 
what  exempt  as,  187-209. 

Churches. 

exemption  of  gifts  to,  200,  204. 

City. 

power  to  impose  tax,  24. 

Classification. 

constitutionality  of  taxes  based  upon,  25-38. 
of  property  as  real  and  personal,  and  exemption  of  former, 
74,  75. 

Colorado  Statute. 

transfers  subject  to  tax,  rate  of  taxation,  exemptions,  410. 

estates  for  life  or  for  years  and  remainders,  411. 

time  for  payment  of  tax,  interest  and  discount,  412. 

collection  of  tax  by  executor,  412. 

sale  of  property  to  pay  tax,  412. 

payment  by  executor  to  county  treasurer,  receipts  and  vouch- 
ers, 412. 

notice  from  executor  to  county  treasurer  of  estates  subject  to 
tax,  413. 

refunding  excess  payments,  413. 

transfer  or  delivery  of  stocks,  securities  and  deposits,  notice, 
413. 

refund  of  tax  erroneously  collected,  414. 

appraisers  and  appraisement,  414. 

appraisers  taking  illegal  fees,  penalty,  416. 

jurisdiction  of  court,  417. 

proceedings  to  enforce  tax,  417. 

notice  to  district  attorney  of  unpaid  tax,  proceedings  for  en- 
forcement, 417. 

statement  to  county  treasurer  of  unpaid  taxes,  417. 

payment  of  expenses  incurred  by  county  treasurer,  418. 

record  to  be  kept  by  state  treasurer,  418. 

60 


786  INDEX. 

[References  are  to  Pages.] 

Colorado  Statute  (Continued). 

duties  of  county  treasurer,  418. 

compensation  of  county  treasurer,  418. 

receipts,  lien  of  tax,  time  when  statute  takes  effect,  418. 

Commissions. 

in  proceedings  to  enforce  tax,  344,  345. 
See  Deductions. 

Community  Property. 

whether  taxable,  83-85. 

Compromise. 

appraisal  of  compromised  claim,  304. 

form  of  composition  agreement,  378.      .  • 

of  litigation,  effect  on  inheritance  tax,  210,  213. 

of  will  contest,  effect  on  inheritance  tax,  210-218. 

Computation. 

of  rate  and  amount  of  tax,  280-285. 

Confiscation  of  Property. 

whether  taxation  can  be  carried  to  extent  of,  13,  14. 

Conflict  of  Laws. 

adjudication  in  another  state,  full  faith  and  credit,  346,  347. 

community  property,  84. 

what  law  governs  in  point  of  time,  52-62. 

See  Aliens;  Nonresidents;  Situs  of  Property;  and  other 
subjects. 

Congress. 

basis  of  right  to  impose  tax,  15. 
power  to  impose  tax,  15-17. 

Connecticut  Statute. 

exemptions  from  tax,  nonresident  decedents,  420. 
transfers  subject  to  tax,  rates,  persons  liable,  interest,  421. 
nonresident  decedents,  stocks,  bonds  and  securities,  421. 


INDEX.  .  787 

[References  »r»  to  Pages.) 

Connecticut  Statute  (Continued). 

ancillary  administration  on  estate  of  nonresident,  notice,  422. 
effect  of  failure  to  take  out  ancillary  administration,  422. 
transfer  or  delivery  of  stocks  and  property,  notice,  422. 
transfer  or  delivery  of  stocks  and  property,  assessment  by  tax 

commissioner,  422. 
repeal  of  certain  sections,  423. 
inventories  and  appraisements,  423. 
payment  by  executor  to  state  treasurer,  423. 
estates  for  years  or  for  life  and  remainders,  424. 
sale  of  property  to  pay  tax,  425. 
application  by  treasurer  for  appointment  of  administrator, 

424. 
jurisdiction  of  probate  court,  state  treasurer  to  represent 

state,  425. 

executor's  account  not  settled  until  taxes  paid,  425. 
transfers  to  take  effect  upon  death  of  grantor,  425. 
powers  of  appointment,  425. 
time  when  statute  takes  effect,  426. 

Consideration. 

of  transfer  to  take  effect  at  death,  152-154. 
transfers  based  upon,  whether  taxable,  71,  72. 

Constitutional  Law. 

aliens,  discrimination  against,  38. 

basis  of  right  of  state  legislature  to  impose  tax,  9. 

certain  statutes  unconstitutional,  25. 

classification  of  persons  for  purposes  of  tax,  25-28. 

classification  of  property  into  real  and  personal,  74,  75. 

Congress,  right  of  to  impose  tax,  15—17. 

curative  acts,  65. 

discrimination  against  aliens  and  nonresidents,  37,  38. 

discrimination  against  collaterals  and  strangers,  25-32. 

discrimination  between  relatives,  32-36. 

double  taxation  in  case  of  nonresidents,  224-231. 

equal  protection  of  laws,  26-28. 

equality  of  taxes,  25-28. 


788  .  INDEX. 

[References  »re  to  Pajes.] 

Constitutional  Law    (Continued), 
exemptions,  validity  of,  25-28. 

exemptions,  retrospective  operation  of  statute,  173, 174. 
exemptions  of  estates  of  limited  value,  40. 
exemption  of  charities,  41. 
extent  to  which  taxation  can  be  carried,  11-15. 
express  provisions  of  constitutions,  22. 
express  constitutional  provisions  not  necessary  to  authorize 

tax,  21. 

federal  tax,  validity  of,  23. 
foreign  charities,  discrimination  against,  197. 
i" '    foreign  corporations  and  charities,  discrimination  against,  37. 

full  faith  and  credit,  346. 

'*'•  -limitation  on  right  of  state  to  impose  tax,  9",  21. 
municipal  corporation,  power  to  impose  tax,  24. 
nonjudicial  functions  imposed  on  courts,  293. 
nonresidents,  discrimination  against,  37. 
nonresident 's  personalty,  whether  may  be  taxed,  225-228. 
notice  of  appraisement  and  assessment,  298. 
of  tax  on  transfer  in  contemplation  or  to  take  effect  on  death, 

149-151. 

pending  administration,  tax  imposed,  55. 
power  of  appointment,  validity  of  tax  on,  110. 
power  of  state  to  impose  tax  is  based  on  right  to  regulate 

transmissions,  9-12. 
progressive  rates,  26,  43. 

public  purposes,  tax  can  be  levied  only  for,  22. 
purpose  of  tax  need  not  be  specified  in  statute,  22. 
rate  of  taxation,  limit  upon,  22. 

release  of  tax  after  right  of  state  is  vested,  173,  174. 
remainders,  tax  upon  after  they  have  vested,  59,  60. 
retrospective  statute,  tax  pending  administration,  55. 
safe  deposit,  detention  of  property  in,  47,  48. 
uniformity  of  tax,  25-28. 
United  States  tax,  validity  of,  23. 

Construction  of  Statutes.    See  Interpretation  of  Statutes. 


INDEX.  7S9 

[Reference!  are  to  Pages.] 

Contemplation  of  Death, 
tax  on  gift  in,  149-166. 

Contempt. 

enforcing  tax  by  proceedings  in,  339. 

Contingent  Estates. 

taxation  of,  125-145. 

Contract  to  Sell  Land. 

situs  of  credits  payable  on,  239. 
whether  real  estate,  75. 

Conversion. 

of  real  property  into  personalty.    See  Equitable  Conversion. 

Cooper  Union.     . 

whether  gift  to  exempt,  193. 

Corporate  Stock. 

gift  in  contemplation  of  death,  157. 

is  taxable,  93. 

joint  stock  association,  whether  shares  in  are  personalty,  75, 

94. 

pledged  as  security,  93. 
trust,  transfers  in,  164-167. 
valuation  of,  in  assessing  tax,  305-307. 
situs  of,  in  case  of  domestic  corporation,  244-253. 
situs  of,  in  case  corporation  organized  in  two  states,  254-256. 
situs  of,  in  case  of  foreign  corporation,  256,  257. 
situs  of  proceeds  of  sale  of,  235. 

Courts.     See  Jurisdiction  of  Courts. 

Cruelty. 

societies  for  prevention  of,  exemption  of  gifts  to,  208,  209. 

Curative  Statutes. 

power  to  enact,  65. 

Curtesy. 

whether  taxable,  85. 


790  INDEX. 

[Reference!  are  to  Pages.] 

Decrease  of  Property. 

in  value  after  death,  72-74. 

Decrees.     See  Judgments  and  Orders. 

Debts. 

bequest  in  discharge  of,  whether  taxable,  71,  72,  102,  104. 
deduction  of,  311-324. 

marshaling  assets  in  case  of  nonresidents,  231-235. 
transfers  to  pay,  whether  taxable,  71,  72. 

Deductions. 

apportionment  between  exempt  and  nonexempt  property,  316. 
attorney  fees,  319-321. 
burial  expenses,  316. 
commissions  of  brokers,  323. 
commissions  of  executor  or  administrator,  321. 
commissions  of  temporary  administrator,  318. 
commissions  of  trustees,  322. 
compromise  of  litigation  or  will  contest,  210-218. 
curtesy,  whether  to  be  deducted,  85. 
debts  of  decedent,  in  general,  312. 
debts  secured  by  mortgage  on  realty,  313-315. 
debts  owing  by  nonresident  decedents,  315,  316. 
dower,  whether  to  be  deducted,  80-82. 
'dower,  gifts  in  lieu  of,  80-82. 
expenses  of  administration,  317. 
expenses  of  litigation,  318-323. 
expenses  of  will  contest,  318-320. 
funeral  expenses,  316. 
litigation,  effect  of  compromise  of,  210-218. 
lost  or  destroyed  property,  325. 

marshaling  assets  in  case  of  nonresidents,  231-235.     . 
mortgage  on  realty,  debts  secured  by,  313-315. 
net  succession  is  measure  of  tax,  311. 
nonresident  decedent,  debts  owing  by,  315,  316. 
powers  of  appraisers,  312. 
property  misappropriated  by  executor,  325. 
taxes  on  property,  323. 


INDEX.  791 

[References  are  to  Pages.] 

Deductions  (Continued). 

temporary  administrator,  fees  and  disbursements,  318. 

United  States  succession  tax,  324. 

will  contest,  effect  of  compromise,  210-218. 

Deed  of  Trust. 

taxability  of  transfer,  165. 

Delaware  Statute. 

transfers  subject  to  tax,  rates,  exemptions,  427. 
liability  for  payment  of  tax,  exemptions,  428. 
inventory,  appraisement  and  valuation,  lien,  collection,  428. 
liability  of  executor  and  sureties,  430. 
payment  by  executor  to  register  of  wills,  431. 
receipts  for  payment  of  tax,  431. 

duty  of  register  of  wills  to  pay  over  money  and  make  returns, 
commissions,  431. 

Deposition. 

commission  to  take  testimony,  290,  291. 

Devisee. 

liability  to  pay  tax,  267-271. 

whether  may  maintain  ejectment  before  payment  of  tax,  269. 

Discrimination. 

against  aliens,  38,  259. 

against  foreign  charities  in  matter  of  exemptions,  195-198. 

against  foreign  corporations  and  charities,  37. 

against  nonresidents,  37. 

between  relatives,  32-36. 

in  imposing  tax,  25-38. 

Distinction. 

between  various  taxes,  2. 

Distributee. 

liability  to  pay  tax,  267-271. 

District  Attorney. 

forms  in  enforcing  tax,  386-390. 


792  INDEX. 

[References  ar»  to  Pages.] 

Domicile  of  Decedent. 

whether  controls  situs  of  personalty,  224-231. 

Double  Taxation. 

constitutionality  of,  45,  46. 

in  case  of  nonresidents,  224-231. 

Dower. 

gifts  in  lieu  of,  whether  taxable,  80-82. 
whether  subject  to  tax,  80-82. 

Educational  Institutions. 

exemption  of  gifts  to,  198-200. 

Ejectment. 

whether  devisees  may  maintain  before  payment  of  tax,  269. 

Enforcement  of  Tax.    See  Payment  and  Enforcement. 

Equality  of  Taxation. 
rule  of,  25. 

Equal  Protection  of  Laws, 
rule  of,  26-28. 

Equitable  Conversion. 

exemption  not  worked  by,  115. 
lien  of  tax,  279. 

power  of  appointment,  in  case  of,  115. 
situs  if  realty  affected  by,  75-79. 

Equity. 

jurisdiction  of  courts  of,  291-293. 

Evasion  of  Tax. 

by  gift  reserving  life  estate  or  income,  162. 
trusts,  transfers  in,  161-168. 

Evidence. 

of  assets  to  be  appraised,  302. 


INDEX.  793 

[References  are  to  Pages.] 

Exchanges. 

sales  of  stock  as  evidence  of  value,  305-307. 

membership  in  stock  or  produce,  whether  taxable,  98-100. 

Excise. 

inheritance  tax  regarded  as,  7. 

Executors  and  Administrators. 

account,  allowance  of,  liability  for  tax,  272,  273. 
deduction  of  compensation,  321. 
gifts  to  in  lieu  of  compensation,  219,  220. 
liability  for  tax,  272. 

Exempt  Articles. 

to  widow  and  children,  whether  taxable,  86. 

Exemptions. 

adopted  children,  180-182. 

aged,  gifts  for  support  of,  203-205. 

almshouse,  gifts  for,  203-205. 

based  on  relationship,  179-186. 

based  on  value  of  property,  174-176. 

cemetery  associations,  gifts  to,  207,  208. 

charities,  gifts  to,  187-196. 

charities,  foreign  institutions,  193-198. 

computation  of,  174-178. 

constitutionality  of,  25-28. 

cruelty,  gifts  to  societies  for  prevention  of,  208. 

educational  institutions,  gifts  to,  198,  199. 

equitable  conversion  cannot  work,  115. 

foreign  charities,  discrimination  against,  193-198. 

foreign  jurisdiction,  property  in,  178. 

form  of  petitions  and  orders  to  declare,  376,  378. 

hospitals,  gifts  to,  205,  206. 

illegitimate  children,  184,  185. 

indigent,  gifts  for  support  of,  203-205. 

how  computed.  174-178. 

how  deducted  in  fixing  rate  and  amount  of  tax,  280-285. 

lineal  descendants,  179-184. 

manner  of  determining,  174-178. 


794  INDEX. 

[References  art  to  P*fes.] 

Exemption!!  (Continued), 
masses,  gifts  for,  208. 
municipality  or  state,  185, 186. 
nation,  state,  or  municipality,  140-186. 
of  charities,  constitutionality  of,  40. 
of  estates  of  limited  value,  constitutionality,  40. 
of  property  from  general  taxation  does  not  exempt  from  in- 
heritance tax,  69,  70. 

persons  to  whom  decedent  stood  as  parent,  182-184. 
religious  institutions,  gifts  to,  200-202. 
retrospective  operation  of  statute,  173,  174. 
state  or  city,  185,  186. 
strict  or  liberal  interpretation  of,  131-133. 
United  States,  legacy  to,  97. 
United  States,  bonds  and  securities  of,  94-97. 

Expense  of  Administration.    See  Deductions, 
tax  is  not,  269. 

Extent. 

to  which  taxation  can  be  carried,  11-14. 
states  that  have  adopted  tax,  18. 

Family  Allowance. 

made  by  court,  whether  taxable,  86. 

Foreign  Charities. 

discrimination  against,  193-198. 

Foreign  Corporations. 

discrimination  against,  37. 
situs  of  stock,  256,  257. 

Foreign  Property. 

including  in  appraisement.  302. 

Forms. 

explanatory,  355. 


INDEX.  795 

[References  are  to  Pages.] 

Forms  (Continued). 

petition  for  appointment  of  appraiser  in  estate  of  resident 
decedent,  356. 

petition  for  appointment  of  appraiser  in  estate  of  nonresident 
decedent,  357. 

order  appointing  appraiser,  358. 

oath  of  appraiser,  358. 

appraiser's  notice  of  hearing,  359. 

affidavit  of  mailing  of  notice  of  hearing,  360. 

subpoena  of  appraiser,  360. 

request  to  superintendent  of  insurance,  361. 

report  of  appraiser,  362. 

order  fixing  tax,  367. 

notice  of  assessment  of  tax  by  surrogate,  368. 

notice  of  appeal  to  surrogate,  368. 

order  on  appeal,  369. 

notice  of  appeal  to  appellate  division,  370. 

petition  for  remission  of  penalty,  371. 

notice  of  motion  to  remit  penalty,  372. 

order  remitting  penalty,  373. 

petition  for  order  fixing  tax  without  appraiser,  373. 

order  fixing  tax  where  no  appraiser  appointed,  375. 

petition  to  declare  estate  exempt,  376. 

order  exempting  estate,  377. 

order  remitting  report  to  appraiser,  377. 

composition  agreement,  378. 

waivers  of  notice  by  controller,  380. 

affidavits  for  appraisal  of  nonresident's  estate,  380. 

memorandum  used  by  appraisers  of  New  York  County  for 
preparation  of  affidavits,  384. 

district  attorney  proceedings,  petition  for  citation,  386. 

district  attorney  proceedings,  order  for  citation,  388. 

district  attorney  proceedings,  citation,  388. 

district  attorney  proceedings,  order  appointing  appraiser,  389. 

district  attorney  proceedings,  decree  fixing  tax,  directing  pay- 
ment, etc.,  390. 

Fountain. 

exemption  of  gift  for,  193. 


796  INDEX. 

[References  are  to  Pages.] 

France. 

treaty  with,  tax  against  aliens,  259,  260. 

Full  Faith  and  Credit. 

adjudication  in  another  state,  346. 

Funeral  Expenses. 

whether  gifts  for  are  taxable,  87. 
whether  to  be  deducted,  207,  208. 

Future  and  Contingent  Estates, 
taxation  of,  126-145. 

Gift. 

in  contemplation  of  death,  taxation  of,  149-166. 
to  take  effect  at  death,  taxation  of,  149-166. 

Goodwill. 

of  business,  whether  taxable,  100,  101. 

Grantee. 

liability  for  tax,  273. 

History. 

of  inheritance  taxation,  17,  18. 

Homestead. 

whether  taxable  when  set  apart  to  widow,  86. 

Hospitals. 

exemptions  of  gifts  to,  205-208. 

Idaho  Statute. 

transfers  subject  to  tax,  market  value,  lien,  432. 

power  of  appointment,  433. 

classification    of   beneficiaries,    tax   rates    on    estates   under 

$25,000,  433. 
rates  of  taxation  on  estates  over  $25,000,  434. 


INDEX.  797 

[References  are  to  Pages.] 

Idaho  Statute  (Continued). 

exemptions  from  taxation,  434. 

estates  for  years  or  life,  remainders  and  contingent  interests, 

435. 

bequests  to  executor  or  trustee,  435. 
time  of  payment  of  tax,  interest  and  discount,  436. 
collection  of  tax  by  executor  or  trustee,  436. 
sale  of  property  to  pay  tax,  436. 
payment  to  county  treasurer,    duty  of   controller,   receipts, 

437. 

refunding  excess  payments,  437. 
transfer   or  delivery   of  stocks,   securities,   deposits,  notice 

thereof,  437. 

appraisers  and  appraisement,  438. 
appraiser  taking  other  than  regular  fees,  penalty  therefor, 

439. 

nonresidents,  jurisdiction  of  court,  439. 
citation  to  delinquent  taxpayer,  439. 
proceedings  by  district  attorney  against  delinquent,  440. 
entries,  records  and  reports  of  county  clerk,  440. 
costs  of  proceedings  against  delinquent,  440. 
payment  by  county  to  state  treasurer,  441. 
furnishing  copy  of  receipts  to  persons  applying  therefor,  441. 
disposition  of  taxes  collected,  441. 

refusal  of  officers  to  discharge  duties,  penalty  therefor,  441. 
definitions  of  words  used  in  statute,  441. 
enforcement  of  lien  of  tax,  quieting  title,  442. 
repeal  of  conflicting  acts,  443. 

Illegitimates. 

exemption  of,  184,  185. 

Illinois  Statute. 

transfers  subject  to  tax,  rates,  exemptions,  444. 
estates  for  years  or  for  life  and  remainders,  446. 
time  for  payment,  interest  and  discount,  bond  for  payment, 

447. 
collection  of  tax  by  executor,  447. 


798  INDEX. 

[References  »r»  to  Pages.] 

Illinois  Statute  (Continued). 

liability  of  executor,  sale  of  property  to  pay  tax,  447. 

payment  by  executor  to  county  treasurer,  receipts  and  vouch- 
ers, 448. 

executor  to  give  notice  to  county  treasurer  of  transfers,  448. 

refunding  excess  payments,  448. 

transfer  or  delivery  of  stocks,  securities  and  deposits,  notice, 
448. 

refunding  of  tax  erroneously  paid,  449. 

appraisers  and  appraisement,  450. 

fees  of  clerk,  inheritance  tax,  clerk  and  attorney,  450. 

appraiser  receiving  illegal  fees,  penalty,  451. 

jurisdiction  of  court,  451. 

citation  to  delinquent  taxpayer.  451. 

duty  of  state  attorney  to  collect  tax,  452. 

statement  to  county  treasurer  of  unpaid  taxes,  452. 

allowance  for  expenses  incurred,  452. 

record  to  be  kept  in  office  of  county  judge,  452. 

payment  by  county  treasurer  to  state  treasurer,  receipts,  452. 

commissions  of  county  treasurer,  453. 

receipts  for  payment  of  tax,  453. 

proceedings  to  determine  whether  transfer  subject  to  tax,  453. 

lien  of  tax,  453. 

contingent  or  expectant  estates,  454. 

computation  of  taxes  on  expectant  estates  under  former 
statute,  454. 

guardian  for  person  under  disability,  455. 

transfers  exempt  from  tax,  455. 

transfers  by  deed,  instrument  or  memoranda,  455. 

certified  copies  of  papers,  455. 

repeal  of  other  statutes,  456. 

Impost  Tax. 

inheritance  tax  regarded  as,  7. 

Income  of  Property. 

after  death,  whether  taxable,  72-74. 
trusts,  income  payable  to  transferees,  167. 


INDEX.  J99 

[References  are  to  Pages.] 

Increase  of  Property. 

after  death,  whether  taxable,  72-74. 

Inheritances. 

power  of  state  to  regulate,  10-12. 

Inheritance  Tax. 

different  forms  of,  2. 

distinction  between  various  taxes,  2. 

extent  to  which  may  be  carried,  11—14. 

important  features  of,  19. 

justice  of,  20. 

meaning  of,  1. 

not  charge  on  property,  4. 

origin  and  extent  of,  17,  18. 

regarded  as  diminution  of  amount  passing,  7. 

right  to  impose  is  based  on  right  to  regulate  transmission  of 

property,  9-12. 
various  names  applied  to,  2,  3. 

whether  on  right  to  transmit  or  right  to  receive  property, 
5,  6. 

Insurance. 

form  of  request  to  superintendent  of,  361. 
proceeds  of  life  policy,  whether  taxable,  89-91. 

Intention. 

of  donor  in  disposing  of  property  in  lifetime,  150,  152. 

Interest. 

payment  on  taxes,  353. 

Interpretation  of  Statutes. 

adoption  from  other  states,  in  case  of,  49. 

amendatory  acts,  64. 

exemptions,  strict  or  liberal  construction,  171-173. 

liberal  interpretation,  51,  52. 

pari  materia,  rule  of,  50. 

repeal  and  re-enactment  of  law,  65,  66. 


800  INDEX. 

[References  are  to  Pages.] 

Interpretation  of  Statutes  (Continued). 

retrospective  operation,  in  general,  52-54. 
strict  interpretation,  51: 
what  law  governs,  52-62. 

Interstate  Corporation. 

situs  of  stock  for  purposes  of  taxation,  254r-256. 

Inter  Vivos. 

taxation  of  gifts,  159. 

Inventory. 

statement  of  property  and  persons  liable  for  tax,  294. 
See  Appraisers  and  Appraisement. 

Iowa  Statute. 

• 

transfers  subject  to  tax,  rates,  persons  liable,  lien,  time  of 

payment,  458. 
exemptions  from  tax,  458. 
deduction  of  debts,  459. 

collection  of  tax  when  no  administrator  appointed,  459. 
appointment  and  qualification  of  appraiser,  460. 
issuance  of  commission  to  appraisers,  460. 
notice  of  appraisement,  returns  filed,  460. 
objections  to  appraisement,  461. 
appraisement  of  property,  market  value,  deduction  of  debts, 

461. 

relief  from  appraisement,  462. 

appraisement  of  deferred  estates  in  real  property,  463. 
estates  for  years  or  for  life  and  remainders  in  real  property, 

463. 

estates  for  years  or  for  life  in  personal  property,  463. 
bond  to  secure  payment  of  tax  on  deferred  estates,  464. 
terms  and  conditions  of  bonds,  464. 
removal  of  property  from  state,  penalty,  464. 
value  of  annuities,  life,  term,  and  deferred  estates,  465. 
collection  of  tax,  465. 
deduction  of  tax  from  legacy,  465. 
account  of  executor  not  settled  before  tax  paid,  466. 


INDEX.  801 

[References  ar»  to  Pages.] 

Iowa  Statute  (Continued). 

jurisdiction  of  court,  466. 

bequest  to  executor  in  lieu  of  compensation,  466. 
legacies  charged  upon  real  estate,  466. 
interest  on  delinquent  taxes,  466. 

information  to  be  furnished  state  treasurer  on  demand,  467. 
lien  book  to  be  kept  by  clerk  of  court,  467. 
report  of  executors,  entry  of  tax  liens,  468. 
extension  of  time  for  appraisement,  468. 
report  by  heirs  to  clerk,  468. 
entries  to  be  made  by  clerk  in  lien  book,  469. 
clerk  to  keep  probate  record,  469. 
clerk  to  report  estates  subject  to  tax,  fees,  469. 
duties  of  county  attorney,  compensation,  470. 
settlement  of  conflicting  claims  for  fees,  470. 
enforcement  of  payment  of  tax,  471. 
costs  taxed  to  estates,  471. 

delivery  or  transfer  of  securities  or  deposits,  notice,  471. 
transfers  of  corporate  stock,  liability  of  corporation,  472. 
corporations  to  report  certain  stock  transfers  to  state  treas- 
urer, 472. 

foreign  estates,  deduction  of  debts,  472. 
property  of  foreign  estates  not  specifically  devised,  473. 
approval  of  compromise  settlement,  473. 
unknown  heirs,  473. 
refund  of  tax,  474.  • 

contingent  estates,  devises  or  legacies,  474. 
definitions  of  terms,  474. 
records  to  be  kept  by  state  treasurer,  475. 
repeal  of  conflicting  statutes,  475. 

Italy. 

treaty  with,  tax  against  aliens,  262. 

Joint  Stock  Association. 

whether  interest  of  shareholder  is  personalty,  75,  94. 

Judicial  Sale. 

Hen  of  tax,  279. 

51 


802  INDEX. 

[References  an  to  Pagei.] 

Judgments  and  Orders. 
appeals  from,  334-338. 
conclusiveness,  326-328. 
correction  of  valuations,  331-333. 
form  of  order  appointing  appraiser,  358. 
form  of  order  fixing  tax,  367,  373. 
form  of  order  remitting  penalty,  373. 
modification  of,  330-332. 
setting  aside,  328-330. 
vacation  and  setting  aside,  328. 
valuation  of  property,  correction  of,  331-333. 

Jurisdiction. 

appraisement  proceedings,  297. 
court  first  acquiring,  retains,  285-287. 
equity  courts,  291-293. 
exclusiveness  of  probate  court's,  291-293. 
in  construction  of  wills,  288. 

in  determining  taxability  and  value  of  property,  284-291. 
in  ordering  production  of  corporate  books,  291. 
in  issuing  commission  to  take  testimony,  290-291. 
nonjudicial  functions  imposed  on  court,  293. 
nonresidents,  in  case  of,  285-288. 
of  probate  court,  in  general,  285. 
powers  of  appointment,  in  case  of,  118,  287. 
powers  of  probate  judge%or  surrogate,  285-287. 
probate  court  having,  286-288. 
subpoena  duces  tecum,  291. 
surrogate  having,  286-288. 
value  of  property,  to  determine,  289-291. 
See  Situs  of  Property. 

Kansas  Statute. 

transfers  subject  to  tax,  rates,  persons  liable,  exemptions,  476. 
property  out  of  state  or  nonresident  within  state,  478. 
payment  of  tax,  interest,  lien  of  tax,  478. 
deposit  for  payment  of  tax  in  case  of  contingent  gift,  479. 
assessment  of  tax,  value  of  property,  479. 


INDEX.  .803 

[References  are  to  Pages.] 

Kansas  Statute  (Continued). 

payment  of  tax  on  future  interests,  480. 

bequests  to  executors  in  lieu  of  compensation,  480. 

collection  of  tax  by  executor,  480. 

legacy  charged  upon  real  estate,  480. 

testamentary  provision  for  payment,  480. 

sale  of  property  to  pay  tax,  481. 

inventory  and  appraisement,  failure  to  file,  481. 

recording  inventory  and  appraisement,  copies  of  papers,  481. 

tax  on  stock  transferred  by  foreign  executor,  481. 

tax  on  assets  delivered  to  nonresident,  482. 

refunding  excess  payments,  482. 

determination  of  value  of  property,  482. 

determination  of  tax  by  commission,  482. 

jurisdiction  of  probate  court,  483. 

administration  at  instance  of  tax  commission,  483. 

account  of  executor  not  settled  until  tax  paid,  484. 

proceedings  for  recovery  of  tax,  484. 

retrospective  operation  of  statute,  484. 

report  of  county  treasurer,  484. 

commissions  of  county  treasurer,  484. 

taxes  to  be  paid  into  state  treasury,  485. 

definitions  of  terms,  485. 

Kentucky  Statute. 

transfers  subject  to  tax,  rate  of  taxation,  persons  liable,  486. 
estates  for  years  or  life,  remainders  and  contingent  interests, 

487. 

bequests  to  executors  in  lieu  of  compensation,  487. 
time  for  payment,  interest  and  discount,  487. 
penalty  for  nonpayment,  488. 
collection  of  tax,  488. 
sale  of  property  to  pay  tax,  488. 
payment  by  executor  to  sheriff  or  collector,  receipts  and 

vouchers,  488. 

refund  to  legatee  of  overpayment,  489. 
transfer  of  stock  or  loans,  payment  of  tax,  489. 
appraisers  and  appraisement,  489. 


804  INDEX. 

[References  are  to  Pages.] 

Kentucky  Statute  (Continued). 

appraiser  taking  other  than  regular  fees,  penalty,  490. 

jurisdiction  of  county  court,  490. 

records  to  be  kept  by  county  clerk,  491. 

duties  of  sheriff  or  collector  in  enforcing  and  accounting  for 

taxes,  490. 
refund  where  legacy  less  than  five  hundred  dollars,  491. 

Leasehold. 

whether  personal  or  real  property,  75. 

Legacy. 

renunciation  of,  effect  on  tax,  218,  219. 

Legatee. 

liability  to  pay  tax,  267-271. 

Liability. 

for  tax.    See  Persons  or  Fund  Liable. 

Library. 

exemption  of  gifts  to,  199. 

Lien  of  Tax. 

equitable  conversion  of  property,  279. 

extent  of,  275-278. 

in  general,  275. 

judicial  sale  of  property,  279. 

limitation  of  action  to  enforce,  343. 

priority  of  mortgage,  278. 

scope  and  extent  of,  275-278. 

to  what  property  attaches,  275-278. 

whether  makes  title  unmarketable,  276-278. 

Life  Estate. 

determination  of  value,  121-123. 
gift  reserving,  whether  taxable,  149-168. 
person  or  fund  liable  for  tax,  145,  146. 
taxation  of,  121. 

Life  Insurance. 

taxation  of  proceeds,  89-91, 


INDEX.  805 

[References  ar*  to  Page*.] 

Limitation  of  Action. 

to  enforce  tax  on  lien,  342-344. 

Lineal  Descendants. 

exemption  from  taxation,  169-186. 

Litigation. 

compromise  of,  effect  on  inheritance  tax,  210-218. 
deduction  of  expenses  of,  318-320. 

Louisiana  Statute. 

transfers  subject  to  tax,  rates,  492. 
.    transfers  not  subject  to  tax,  492. 
taking  possession  of  succession  without  authority  of  court, 

493. 

executor  to  fix  amount  of  tax,  493. 
collection  of  tax,  493. 

liability  of  executor,  no  discharge  until  tax  paid,  494. 
duty  of  heir  when  administration  not  ordered  by  court,  494. 
payment  of  tax,  494. 
sale  of  property  to  pay  tax,  494. 

liability  of  heir  for  legacy  tax,  494.  « 

search  by  tax  collector,  495. 
appointment  of  executor  when  will  found,  495. 
procedure  where  no  will  found,  495. 

proceedings  by  heir  or  legatee,  costs  and  attorney  fee,  496. 
rights  of  creditors  preserved,  496. 

tax  on  entire  succession  to  be  paid  when  accepted,  496. 
transfer  or  delivery  of  stocks,  deposits  and  other  property, 

496. 

burden  of  proof  to  establish  exemption,  497. 
jurisdiction  of  district  court,  497. 
curator  ad  hoc  to  represent  nonresident  and  unknown  heirs, 

497. 

commissions  of  tax  collector  and  clerk  of  court,  497. 
attorney  to  assist  clerk  of  court,  fees,  497. 
valuation  of  annuities,  498. 
interest  on  delinquent  tax,  498. 
costs  to  be  borne  by  mass  of  succession,  498. 


806  INDEX. 

[References  are  to  Pages.] 

Maine  Statute. 

transfers  subject  to  tax  rates,  persons  liable,  499. 

estates  for  years  or  for  life  and  remainders,  500. 

bequests  to  executor  in  lieu  of  compensation,  501. 

time  for  payment  of  tax,  interest,  lien,  501. 

liability  of  executor,  502. 

collection  of  tax  by  executor,  502. 

legacies  charged  upon  real  estate,  502. 

legacies  for  a  limited  period,  502. 

sale  of  property  to  pay  tax,  502. 

account  of  executor  not  settled  until  tax  paid,  502. 

filing  copies  of  inventory,  503. 

executor  to  inform  board  of  assessors  of  the  transfer,  503. 

refunding  excess  payments,  503. 

appraisement  and  valuation  of  property,  503. 

jurisdiction  of  probate  court  and  proceedings  therein,  504. 

fees  of  judges  or  registers  of  probate,  504. 

definitions  of  terms,  504. 

attorney  general  to  be  furnished  lists  of  estates  and  investi- 
gate same,  504. 

application  by  attorney  general  for  appointment  of  admin- 
istrator, 505. 

failure  of  executor  to  file  inventory,  505. 

property  subject  to  tax  in  another  state  or  country,  505. 

report  of  deaths  to  attorney  general,  506. 

stock  in  corporations  organized  in  two  or  more  states,  506. 

transfers  of  stocks,  bonds,  etc.,  not  subject  to  tax,  506. 

transfer  of  stocks,  etc.,  of  nonresident  decedent,  507. 

delivery  or  transfer  of  assets  of  nonresident  without  pay- 
ment of  tax,  507. 

proceedings  to  recover  tax,  507. 

retrospective  operation  of  statute,  508. 

payment  of  funds  to  state  treasurer,  508. 

Mandamus. 

to  compel  payment  to  treasurer,  348. 

Marketable  Title. 

effect  ot  lien  of  tax,  276-278. 


INDEX.  807 

[References  ar«  to  Pages.] 

Marriage  Settlement. 

taxation  of  transfer,  164. 

Marshaling  Assets. 

in  case  of  nonresidents,  231-235. 

Maryland  Statute. 

transfers  subject  to  tax,  rates,  exemptions,  509. 

payment  of  tax  by  executor,  510. 

valuation  of  personalty,  sale  of  property  to  pay  tax,  510. 

failure  of  executor  to  pay  tax  within  thirteen  months,  510. 

appointment  of  appraisers  of  real  estate,  510. 

warrant  to  appraisers  of  real  estate,  510. 

appraisement  of  property  lying  in  more  than  one  county,  510. 

inventory  of  real  estate,  511. 

death  or  refusal  of  appraiser  to  act,  511. 

return  of  inventory  of  real  estate,  511. 

appraisement  deemed  to  be  true  value  of  real  estate,  511. 

lien  of  tax,  511. 

collection  of  tax,  sale  of  real  estate,  511. 

estates  for  life  or  for  years  and  remainders,  512. 

determination  of  value  of  estate  less  than  absolute  interest,' 

512. 

sale  of  property  to  pay  tax,  513. 
liability  of  executor  on  bond,  513. 
revocation  of  executor 's  letters  for  failure  to  perform  duties, 

513. 

powers  and  duties  of  administrator  de  bonis  non,  513. 
proceedings  where  no  administration  taken  out,  513. 
failure  of  persons  entitled  to  take  out  administration,  514. 
application  for  letters,  inquiry  as  to  real  estate,  514. 
receipts  for  payment  of  tax,  514. 
payment  to  treasurer,  commissions  of  clerks  and  registers  of 

wills,  514. 
failure  of  clerks  or  registers  to  account,  515. 

Masonic  Lodge. 

whether  gift  to  exempt,  193. 


808  INDEX. 

[References  art  to  Pages.] 

Massachusetts  Statute. 

transfers  subject  to  tax,  rates,  interest,  exemptions,  516. 

stock  in  corporation  organized  under  laws  of  more  than  one 
state,  517. 

property  subject  to  tax  under  laws  of  another  state,  518. 

time  for  payment  of  tax,  remainders,  liens,  interest,  518. 

deposit  in  lieu  of  payment  of  tax,  519. 

assessment  upon  actual  value  of  property,  519. 

payment  of  tax  on  future  interest,  520. 

bequests  to  executors  in  lieu  of  compensation,  520. 

collection  of  tax  by  executor,  sale  of  land,  520. 

legacy  charged  upon  real  estate,  520. 

testamentary  provision  for  payment  of  tax,  521. 

sale  of  real  estate  to  pay  tax,  521. 

inventory,  penalty  for  failure  to  file,  521. 

copies  of  inventory  and  other  papers,  521. 

transfers  of  stock  by  foreign  executor,  521. 

transfer  or  delivery  of  securities,  notice  to  treasurer  and  re- 
ceiver general,  522. 

tax  commissioner  to  be  party  to  petition  by  foreign  executor, 
522. 

refunding  of  tax  paid,  522. 

appraisal  and  valuation  of  property,  523. 

determination  of  amount  of  tax  by  commissioner,  523. 

jurisdiction  of  probate  court,  liability  of  executor,  523. 

application  by  tax  commissioner  for  appointment  of  adminis- 
trator, 524. 

account  of  executor  not  allowed  until  tax  paid,  524. 

proceedings  by  treasurer  and  receiver  general  to  recover  tax, 
524. 

retrospective  operation  of  statute,  524. 

construction  of  statute  with  reference  to  other  laws,  525. 

repeal  of  other  legislation,  525. 

powers  of  appointment,  525. 

refusal  to  furnish  tax  commissioner  with  information,  526. 

application  of  provisions  of  this  act  to  unpaid  taxes,  526. 

application  of  act  to  administrators  appointed  prior  to  pas- 
sage, 526. 


INDEX.  809 

[References  are  to  Pages.] 

Massachusetts  Statute  (Continued). 

proceedings  to  determine  taxes  on  real  estate,  526. 
right  to  inspect  papers  and  records  and  use1  them  in  legal  pro- 
ceedings, 527. 

Masses. 

exemption  of  gifts  for,  208. 

Michigan  Statute. 

transfers  subject  to  tax,  rates,  528. 

transfers  exempt  from  taxation,  529. 

proceedings  to  enforce  tax,  foreclosure  of  lien,  redemption, 
529. 

interest  and  discount,  534. 

collection  of  tax  by  executor,  sale  or  mortgage  of  property, 
534. 

refund  of  tax  erroneously  paid,  535. 

payment  of  tax  in  case  of  reversions  or  remainders,  535. 

bequests  to  executor  in  lieu  of  commissions,  536. 

transfer  or  delivery  of  stock,  deposits  or  securities,  notice, 
536. 

jurisdiction  of  probate  court,  petition  for  letters,  536. 

appointment  of  appraisers,  valuation  of  property,  537. 

notice  of  appraisement,  proceedings  and  expenses,  538. 

report  of  appraiser,  assessment  of  tax,  538. 

notice  to  attorney  general  of  delinquencies,  proceedings  to 
collect  tax,  539. 

receipts,  transfer  tax-book,  540. 

fees  of  county  treasurer,  541. 

record  to  be  kept  by  probate  judge,  541. 

copies  of  letters  and  forms,  report  of  register  of  deeds,  prop- 
erty of  nonresident,  544. 

report  of  county  treasurer,  examiners  of  records,  545.        r 

payment  to  state  treasurer,  application  of  funds,  546. 

definition  of  terms,  546. 

time  when  statute  takes  effect,  546. 

Minnesota  Statute. 

transfers  subject  to  tax,  547. 
computation  of  tax,  548. 
rates  of  taxation,  548,  549. 


810  INDEX. 

[References  are  to  Pages.] 

Minnesota  Statute  (Continued). 

transfers  exempt  from  taxation,  549. 

time  when  statute  takes  effect,  valuation  of  property,  550. 

collection  of  tax  by  executor,  552. 

payment  to  county  and  state  treasurer,  receipts,  552. 

lien  of  tax,  553. 

interest  on  tax,  553. 

sale  of  property  to  pay  tax,  553. 

legacy  charged  upon  real  estate,  553. 

refund  of  tax  erroneously  paid,  554. 

nonresidents,  transfer  or  delivery  of  stocks  and  securities, 

notice,  554. 

transfer  or  delivery  of  deposits  or  securities,  notice,  556. 
application  by  attorney  general  for  letters  of  administration, 

556. 

appointment  of  appraiser,  556. 
appraisement  at  full  and  true  value,  557. 
notice  of  appraisement,  proceedings  and  report,  compensation 

of  appraisers,  557. 

determination  of  value  of  estate  and  amount  of  tax,  558. 
notice  of  tax  for  which  estate  is  liable,  558. 
objections  to  assessment,  reassessment,  559. 
notice  to  county  attorney  of  delinquencies,  proceedings  to  en- 
force tax,  559. 
records  and  reports  of  probate  court,  report  of  register  of 

deeds,  559. 
stipulation  by  attorney  general  of  amount  of  tax  to  be  paid, 

560. 
power  of  attorney  general  to  issue  citations  and  examine 

books  and  records,  561. 
refund  of  tax,  562. 

duty  of  state  auditor  and  treasurer,  563. 
seal  of  attorney  general,  563. 

assistant  attorney  general  in  inheritance  tax  matters,  563. 
time  when  act  takes  effect,  563. 
repeal  of  inconsistent  statutes,  564. 
validity  of  previous  proceedings,  564. 
effect  of  this  act  on  pending  proceedings,  564. 


INDEX.  811 

[References  are  to  Pages.] 

Missouri  Statute. 

transfers  subject  to  tax,  rates,  lien  of  tax,  persons  liable,  565. 

time  for  payment,  interest  and  discount,  lien,  bond  of  ex- 
ecutor, 566. 

payment  and  report  by  collector  to  state  auditor,  567. 

revenue  to  be  known  as  "state  seminary  moneys,"  567. 

revenue  to  be  known  as  "educational  fund,"  567. 

payment  of  tax  on  reversions,  remainders  and  expectancies, 
568. 

bequests  to  executors  in  lieu  of  commissions,  568. 

collection  of  tax  by  executor,  568. 

payment  of  tax  on  gift  for  a  limited  period,  569. 

payment  by  executor  to  collector  of  revenue,  receipts,  569. 

refund  of  tax,  569. 

executor  to  notify  probate  judge  of  taxable  transfers,  570. 

transfer  of  stocks  or  loans  by  foreign  executor,  570. 

appraisers  and  appraisement,  570. 

determination  of  value  of  estate  and  assessment  of  tax,  571. 

reappraisement,  572. 

appraiser  taking  illegal  fees,  penalty,  572. 

jurisdiction  of  probate  court,  prosecuting  attorney  to  repre- 
sent state,  572. 

records  to  be  kept  by  probate  judge,  572. 

reports  to  be  made  by  probate  judge  and  county  recorder, 
573. 

notice  to  collector  of  unpaid  tax — proceedings  for  collection, 
573. 

receipts  for  payment  of  tax,  574. 

commissions  for  collecting  tax,  574. 

repeal  of  inconsistent  statutes,  574. 

Modification. 

of  orders  and  decrees,  326-333. 

Money. 

when  taxable,  91-92. 

Montana  Statute. 

transfers  subject  to  tax,  rate  of  taxation,  exemptions,  575. 


812  INDEX. 

[References  are  to  Pages.] 

Montana  Statute  (Continued). 

appraisement  of  contingent  or  determinable  estates,  576. 

bequest  to  executor  in  lieu  of  compensation,  577. 

time  for  payment  of  tax,  interest  and  discount,  577. 

penalty  for  nonpayment,  577. 

collection  of  tax  by  executor,  578. 

sale  of  property  to  pay  tax,  578. 

payment  to  county  treasurer,  receipts,  578. 

liability  on  executor's  bond,  578. 

proceedings  upon  failure  of  executor  to  pay  tax,  579. 

administrator  de  bonis  non,  579. 

refund  in  case  of  debts  proved  after  distribution,  579. 

refund  in  case  of  erroneous  payment,  579. 

transfer  of  stocks  or  loans  by  foreign  executor,  579. 

appraisers  and  appraisement,  580. 

appraiser  taking  more  than  regular  fees,  penalty,  580. 

jurisdiction  of  courts,  581. 

citation  to  compel  payment,  581. 

proceedings  upon  failure  to  administer  estates,  581. 

action  to  enforce  tax,  582. 

statement  by  clerk  of  delinquent  taxes,  582. 

costs  of  collection,  582. 

record  to  be  kept  by  clerk,  582. 

duties  of  county  treasurer,  582. 

receipts  for  payment  of  tax,  records,  583. 

purposes  for  which  taxes  shall  be  devoted,  583. 

repeal  of  inconsistent  acts,  583. 

time  when  statute  takes  effect,  583. 

Monument. 

exemption  of  gifts  for,  193,  207. 

Mortgage. 

deduction  of  debts  secured  by,  313-315. 

priority  over  lien  of  tax,  278. 

situs  of,  239-242. 

situs  when  secured  on  real  estate,  242-244. 

Most  Favored  Clause. 

in  treaties,  effect  of,  262,  263. 


INDEX.  813 

[Reference*  are  to  Pages.] 

Municipal  Corporation. 

power  to  impose  tax,  24. 
exemption  from  tax,  185,  186. 

Mutually  Acknowledged. 

relation  of  parent  and  child,  persons  standing  in,  182-184. 

Nature. 

of  inheritance  tax,  1-6. 

Nebraska  Statute. 

transfers  subject  to  tax,  rate  of  taxation,  value  of  property, 

exemptions,  584. 

estates  for  years  or  for  life  and  remainders,  585. 
time  for  payment,  interest,  bond,  586. 
collection  of  tax  by  executor,  586. 
sale  of  property  to  pay  tax,  586. 

payment  by  executor  to  county  treasurer,  receipts,  587. 
information  to  county  treasurer  of  taxable  transfers,  587. 
refunding  tax  when  debts  proved  after  distribution,  587. 
transfer  of  stocks  or  loans  by  foreign  executor,  587. 
refund  of  tax  erroneously  paid,  587. 
appraisers  and  appraisement,  588. 
appraiser  receiving  more  than  legal  fees,  penalty,  588. 
jurisdiction  of  county  Court,  589. 
proceedings  to  enforce  tax,  589. 
notice  to  county  attorney  of  refusal  to  pay  tax,  589. 
statement  of  county  judge  and  clerk  of  taxable  transfers,  589. 
book  and  records  to  be  kept  by  county  judge,  590. 
disposition  to  be  made  of  revenue,  590. 
receipts  for  payment  of  tax,  590. 
lien  of  tax,  591. 

Negotiable  Instruments.    See  Bonds ;  Notes. 

New  Hampshire  Statute. 

transfers  subject  to  tax,  592. 

estates  for  years  or  for  life  and  remainders,  593. 

bequest  to  executor  in  lieu  of  commissions,  594. 


814  INDEX. 

[References  are  to  Pages.] 

New  Hampshire  Statute  (Continued). 

time  for  payment  of  bond,  interest  and  lien,  594. 

collection  of  tax  by  executor,  594. 

legacy  charged  upon  real  estate,  595. 

transfer  of  less  than  fee,  595. 

sale  of  land  to  pay  tax,  595. 

statements  and  accounts  of  administrator,  inventory  and  ap- 
praisal, 595. 

copies  of  papers  to  be  sent  state  treasurer,  596. 

notice  to  state  treasurer  of  transfer  of  estate  of  decedent,  596. 

determination  of  amount  of  tax,  596. 

reappraisement,  assessment  of  tax,  597. 

appeal,  enforcement  of  lien,  598. 

application  by  state  treasurer  for  administration,  598. 

account  of  executor  not  allowed  until  taxes  paid,  598. 

appearance  before  state  treasurer  in  the, matter  of  taxes,  599. 

transfer  of  stock  or  obligations  by  foreign  -executor,  599. 

transfer  of  securities  or  assets  belonging  to  estate  of  nonresi- 
dent, 600. 

state  treasurer  a  party  to  all  proceedings,  600. 

books  and  blanks  to  be  furnished  probate  judge,  600. 

time  when  statute  takes  effect,  600. 

New  Jersey  Statute. 

transfers  subject  to  tax,  rates,  persons  liable,  exemptions,  601. 

estates  for  years  or  for  life  and  remainders,  602. 

expectancies,  contingent  estates,  and  executory  devises,  603. 

bequest  to  executor  in  lieu  of  compensation,  604. 

time  for  payment,  interest  and  discount,  bond,  lien,  604. 

penalty  for  nonpayment  of  tax,  605. 

collection  of  tax  by  executor,  605. 

sale  of  property  to  pay  tax,  605. 

payment  to  state  treasurer,  receipts,  records,  605. 

nptice  to  controller  of  taxable  transfers,  606. 

refund  of  tax  on  proof  of  debts  after  distribution,  606. 

transfer  of  property  of  nonresident  decedent,  606. 

liability  of  property  to  tax  due  prior  to  passage  of  this  act, 

607. 
valuation  of  annuities  and  estates  for  life  or  for  years,  607. 


INDEX.  815 

[References  are  to  Pages.] 

New  Jersey  Statute  (Continued). 

refund  of  tax  erroneously  paid,  607. 

notice  to  controller  of  administration  proceedings,  607. 

examination  of  papers  and  records  by  controller,  608. 

appraisers  and  appraisement,  608. 

compensation,  penalty  for  taking  illegal  fees,  609. 

jurisdiction  of  ordinary,  609. 

citation  to  delinquent  taxpayers,  609. 

notice  to  attorney  general  of  delinquencies,  proceedings,  609. 

records  to  be  kept  by  controller,  610. 

compensation  to  person  discovering  taxable  transfer,  610. 

false  statement  to  appraiser,  penalty,  610. 

definition  of  terms,  610. 

constitutionality  of  sections,  611. 

repeal  of  inconsistent  acts,  liens  and  remedies,  611. 

exemption  of  certain  transfers,  611. 

retrospective  operation  of  exemption,  611. 

warrant  to  controller,  611. 

New  York  Statute. 

transfers  subject  to  tax,  612. 
exceptions  and  limitations,  613. 
rate  of  taxation,  614. 
accrual  and  payment  of  tax,  614. 
discount  and  interest,  615. 
collection  of  tax  by  executors,  lien,  615. 
refund  of  tax  erroneously  paid,  615. 
devises  and  bequests  in  lieu  of  commissions,  616. 
liability  of  certain  corporations  to  tax,  617. 
jurisdiction  of  the  surrogate,  617. 

appointment  of  appraisers,  stenographers  and  clerks,  618. 
proceedings  by  appraiser,  619. 
determination  of  surrogate,  621. 
appeal  and  other  proceedings,  622. 
composition  of  transfer  tax  upon  certain  estates,  623. 
1          surrogates'  assistants  in  New  York,  Kings  and  other  counties, 

623. 

proceedings  by  district  attorneys,  624. 
receipts  from  county  treasurer  or  controller,  625. 


816  INDEX. 

[Reference!  are  to  Pages.] 

New  York  Statute  (Continued), 
fees  of  county  treasurer,  625. 

books  and  forms  to  be  furnished  by  the  state  controller,  626. 
reports  of  surrogate  and  county  clerk,  626. 
reports  of  county  treasurer,  626. 

report  of  state  controller,  payment  of  taxes,  refunds  in  cer- 
tain cases,  627. 
application  of  taxes,  628. 
definitions,  629. 

exemptions  in  article  one  not  applicable,  629. 
limitation  of  time,  629. 

Nonresidents. 

appraisement,  venue  of  proceedings,  297. 
debts  owing  by,  deduction,  315. 
discrimination  against,  37. 
double  taxation,  45,  46. 
jurisdiction,  court  having,  285-287. 
life  insurance  proceeds,  89. 
marshaling  assets,  231-235. 
partnership  interest,  102. 
personalty  of,  may  be  taxed,  225-228. 
power  of  appointment,  exercise  of,  116-118. 
situs  of  debts  due,  238. 
transfer  to  take  effect  at  death,  155. 
See  Situs  of  Property. 

North  Carolina  Statute. 

transfers  subject  to  tax,  rate  of  taxation,  630. 

persons  liable  for  tax,  631. 

interest  on  tax,  632. 

collection  of  tax  by  executor,  632. 

estates  for  life  or  term  of  years  or  upon  contingency,  632. 

legacies  charged  upon  real  estate,  632. 

receipts  and  vouchers,  633. 

transfers  of  stocks  or  bonds  by  foreign  executor,  633. 

refunding  tax  when  debts  proved  after  distribution,  633. 

appraisers  and  appraisement,  633. 


INDEX.  817 

[References  are  to   Pages.] 

North  Carolina  Statute  (Continued). 

appraiser  taking  more  than  legal  fees,  penalty,  634. 

records  to  be  kept  by  clerk  of  court,  634. 

proceedings  in  case  of  delinquencies,  634. 

compensation  of  clerk  of  court,  635. 

liability  of  clerk  of  court,  635. 

returns  to  be  made  by  clerk  of  court,  635. 

North  Dakota  Statute. 

transfers  subject  to  tax,  rates,  lien,  636. 

deduction  of  debts  and  costs,  637. 

property  subject  to  tax,  637. 

meaning  of  collateral  heirs,  pending  estates,  637. 

property  belonging  to  foreign  estates  liable  to  tax  in  this  state, 

637. 

property  of  foreign  estate  in  part  exempt  in  this  state,  638. 
inventory  to  be  filed  by  executor,  lien  of  tax,  638. 
appraisement  of  property,  638. 
estate  for  life  or  for  years  and  remainders,  638,  639. 
bequest  to  executor  in  lieu  of  compensation,  639. 
legacies  charged  upon  real  estate,  640. 
collection  of  tax  by  executor,  640. 
time  for  payment  of  tax,  interest,  640. 
appraisement  of  real  estate,  640. 
payment  by  executor  to  state  treasurer,  640. 
filing  description  of  real  estate  in  case  of  remainder,  641. 
filing  appraisement  with  state  treasurer,  641. 
account  of  executor  not  allowed  until  taxes  paid,  641. 
jurisdiction  of  district  court,  641. 

Norway. 

treaty  with,  tax  against  aliens,  264-266. 

Notes. 

bequest  of,  whether  taxable,  104. 

situs  of,  239-242. 

situs  of,  when  secured  by  mortgage  on  real  estate,  242-244. 

62 


813  INDEX. 

[References  are  to  Pages.] 

Notice. 

form  of  affidavit  of  mailing,  360. 

form  of  appraiser's,  359. 

form  of  waiver  of,  380. 

forms  of,  on  appeal,  368,  370. 

form  of,  on  motion  to  remit  penalty,  372. 

of  appeal,  335. 

of  appraisement  and  assessment,  292. 

Oath. 

form  of  appraiser's,  359. 

Obligations. 

bequest  in  discharge  of,  whether  taxable,  71,  72, 102, 104. 

Ohio  Statute. 

transfers  subject  to  tax,  rates,  persons  liable,  interest,  lien, 

642. 

exemptions  from  tax,  643. 

estates  for  life  or  for  years  and  remainder,  643. 
bequests  in  lieu  of  compensation,  643. 
payment  of  tax,  interest  and  discount,  643. 
collection  of  tax  by  executor,  644. 
legacy  charged  upon  real  estate,  644. 
gift  for  limited  period,  644. 
sale  of  property  to  pay  tax,  644. 

inventory  and  assessment,  duty  of  auditor  and  treasurer,  644. 
notice  to  probate  judge  of  taxable  transfers,  645. 
refund  of  tax  in  certain  cases,  645. 
valuation  and  appraisement  of  property,  645. 
jurisdiction  of  probate  court,  645. 
statement  to  county  auditor  of  transfers,  record  by  probate 

judge,  645. 

fees  of  officers  in  collecting  tax,  646. 
account  of  executor  not  allowed  until  taxes  paid,  646. 
meaning  of  the  word  "property,"  646. 


INDEX.  819 

i 

[References  are  to  Pagei.] 

Oklahoma.  Statute. 

transfers  subject  to  tax,  market  value  of  property,  647. 

rate  of  taxation  in  certain  cases,  648. 

rate  of  taxation  in  other  cases,  649. 

exemptions  from  tax,  649. 

lien  of  tax,  payment,  receipts,  650. 

interest  and  discount,  650. 

collection  of  tax  by  executor,  sale  of  property,  650. 

refunding  tax  paid,  651. 

bond  to  secure  deferred  payments,  652. 

bequest  to  executor  in  lieu  of  compensation,  652. 

transfer  of  stock  or  obligations  by  foreign  executor,  notice, 

652. 

jurisdiction  of  county  court,  653. 

appointment  of  appraisers  and  valuation  of  property,  653. 
proceedings  by  appraiser,  compensation,  654. 
report  of  appraiser,  655. 
duty  of  insurance  commissioner,  655. 
duty  of  state  auditor,  656. 

guardian  of  person  under  disability,  reappraisement,  656. 
procedure  to  enforce  unpaid  tax,  657. 
books  to  be  furnished  by  state  auditor,  657. 
report  of  county  judge,  .658. 
report  of  county  treasurer,  658. 
extensions  and  compromise  by  county  treasurer,  658. 
receipts  and  their  registration,  658. 
disposition  of  revenue,  659. 
interpretation  of  words  used  in  statute,  659. 

Orders.     See  Judgments  and  Orders. 

Oregon  Statute. 

transfers  subject  to  tax  exemptions,  661. 
rates  of  taxation,  661. 
time  for  payment,  662. 
collection  of  tax  by  executor,  662. 
payment  to  state  treasurer,  receipts,  662. 
lien  of  tax,  663. 


620  INDEX. 

[References  are  to  Pages.] 

Oregon  Statute  (Continued). 

interest  and  discount,  663. 

sale  of  property  to  pay  tax,  663. 

legacy  for  limited  period  or  charge  upon  real  estate,  663. 

refund  of  tax  erroneously  paid,  664. 

transfer  of  stock  or  obligation  by  foreign  executor,  664. 

delivery  of  deposits  or  securities,  notice,  664. 

payment  deferred,  bond,  665. 

bequest  to  executor  in  lieu  of  compensation,  665. 

jurisdiction  of  county  court,  665. 

notice  to  state  treasurer  of  transfer,  valuation  of  property, 
665. 

duty  of  executor  to  make  inventory  and  appraisement,  666. 

extension  of  time  for  appraisement,  666. 

inventory  and  appraisement  to  be  sent  to  state  treasurer,  666. 

court  may  act  on  appraisement  or  require  another,  667. 

appointment  of  appraisers,  667. 

time  for  appraisement,  life  and  future  or  contingent  estates, 
667. 

appraisement,  time  and  place,  fees  of  appraiser,  667. 

report  of  appraisers,  filing  in  county  court,  668. 

notice  of  determination  of  value,  668. 

reappraisement  and  assessment,  »66S. 

duty  of  treasurer  when  tax  unpaid,  669. 

books  and  forms  to  be  furnished  by  Secretary  of  State,  en- 
tries by  courts,  670. 

reports  by  judges  and  custodian  of  deeds  and  records,  670. 

receipts  to  be  furnished  by  state  treasurer,  671. 

recording  of  receipts,  671. 

compromise  or  settlement  of  tax,  671. 

reports  to  be  furnished  by  executor,  671. 

appellate  proceedings,  672. 

failure  to  produce  will,  penalty,  672. 

administering  personal  estate  without  proving  will,  penalty, 
672. 

notice  to  state  treasurer  of  transfer,  672. 

property  subject  to  tax,  672. 

property  in  state  belonging  to  nonresident  decedent,  673. 


INDEX.  821 

[References  are  to  Page*.] 

Oregon  Statute  (Continued). 

compensation  of  officers,  673. 

payment  of  expenses  and  disbursements,  673. 

appraiser  taking  more  than  regular  fees,  penalty,  673. 

Origin. 

of  inheritance  taxes,  17,  18. 

Parent  and  Child. 

persons  standing  in  acknowledged  relation  of,  182-184. 

Pari  Materia. 

rule  of  in  construing  statutes,  50. 

Partition. 

whether  proceeds  of  sale  are  personal  property,  75. 

Partnership. 

interest  in,  whether  taxable,  101,  102. 

Payment  and  Enforcement  of  Tax. 
accrual  of  tax,  341. 

adjudication  in  another  state,  full  faith  and  credit,  346,  347. 
attorney  fees,  344-346. 
burden  of  proof,  340.  ., 

commissions  and  fees,  344,  345. 
contempt  proceedings,  339. 
costs,  fees  and  commissions,  344-346. 
effect  of  payment  in  another  state,  347. 
failure  of  statute  to  prescribe  procedure,  340. 
forms  in  proceedings  to  enforce  tax.    See  Forms, 
fund  liable  for  tax,  267-274. 
guardian  for  infant,  340. 
interest  and  penalties,  353. 
law  governing  procedure,  341. 
limitation  of  actions,  342. 

mandamus  to  compel  payment  to  state  treasurer,  348. 
marshaling  assets  in  case  of  nonresidents,  231-235. 


822  INDEX. 

[Reference*  are  to  Pages.] 

Payment  and  Enforcement  of  Tax  (Continued), 
method  of  enforcement,  339. 
penalties  and  interest,  353. 
persons  liable  for  tax,  267-274. 
receipts,  349. 
recovering  back  tax,  351. 
refund  to  taxpayer  349-351. 
suits  to  enforce,  339. 
tax  is  charge  on  distributee's  share,  not  on    general  estate, 

267-270. 

tax  is  not  expense  of  administration,  269. 
time  for  payment,  341. 
treasurer,  payment  to,  348. 
what  law  governs  procedure,  341. 
See  Forms. 

Penalties. 

in  case  of  default,  353. 

liability  of  safe  deposit  company  for  turning  over  property 

without  notice  to  fiscal  officers,  47,  48. 
form  of  order  remitting,  373. 
form  of  petition  for  remission,  371. 
form  of  notice  of  motion  to  remit,  372. 
repeal  of  United  States  statute,  66. 

Pennsylvania  Statute. 

estates  subject  to  tax  rates,  674. 

executor  not  discharged  until  tax  paid,  675. 

transfers  not  subject  to  tax,  676. 

estates  of  limited  value  exempt,  676. 

bequest  to  executor  in  lieu  of  compensation,  676. 

estate  for  years  or  for  life  and  remainder,  676. 

interest  and  discount,  677. 

collection  of  tax  by  executor,  677. 

legacies  for  limited  period  or  upon  contingency,  677. 

legacy  charged  upon  real  estate,  678. 

notice  to  county  register  of  transfer,  678. 

receipts  for  payment,  678. 


INDEX.  323 

[Reference!  ar*  to  Pages.] 

Pennsylvania  Statute  (Continued). 

transfer  of  stocks  or  loans  by  foreign  executor,  678. 

refund  of  tax,  679. 

appraisers  and  appraisement,  679. 

compensation  of  appraisers,  679. 

appointment  of  expert  as  appraiser,  679. 

appraiser  taking  more  than  regular  fee,  penalty,  680. 

records  to  be  kept  by  register  of  wills,  680. 

report  by  register  to  auditor  general,  680. 

proceedings  to  enforce  tax,  681. 

citation  to  parties  in  case  of  unpaid  tax,  681. 

employment  of  attorney  to  sue  for  tax,  681. 

compensation  of  register  for  collecting  tax,  681. 

bond  of  register,  681. 

collection  by  county  treasurer,  682. 

returns  and  payment  by  register  to  state  treasurer,  682. 

lien  of  tax,  682. 

refund  of  tax  erroneously  paid,  682. 

application  for  repayment  of  tax,  682. 

refund  of  tax  when  estate  was  not  subject  thereto,  683. 

bequest  for  burial  lot,  683. 

time  when  statute  takes  effect,  683. 

Personal  Property. 

shares  in  joint  stock  association,  whether  personalty,  94. 

what  is,  for  purposes  of  taxation,  75. 

whether  may  be  taxed  when  realty  is  exempted,  74,  75. 

Persons  or  Fund  Liable  for  Tax. 
administrator's  liability,  274. 
assignees  of  property,  273,  274. 
compromise  of  litigation  as  affecting,  210-218. 
compromise  of  will  contest  as  affecting,  210-218. 
designation  by  testator,  267. 
distributee  or  legatee,  267-271. 
executor's  liability,  272. 
for  tax  on  life  estates,  145,  146. 
for  tax  on  remainders,  145,  146. 


824  INDEX. 

[References  are  to  Pages.] 

Persons  or  Fund  Liable  for  Tax  (Continued). 

personal  liability  of  distributee  or  legatee,  270. 

renunciation  of  legacy  as  affecting,  270,  271. 

tax  is  charge  on  distributee's  share,  not  on  general  estate, 

267-270. 

tax  on  personalty  in  another  state  as  affecting,  271. 
transferees  of  property,  273,  274. 

Petitions.     See  Forms. 
Pleading.    See  Forms. 

Pledged  Stock. 

when  taxable,  93. 

Poor. 

exemption  of  gifts  for,  203-205. 

Power  of  Appointment, 
accrual  of  tax,  106,  119. 

constitutionality  of  tax  on  exercise  of,  110-112. 
court  having  jurisdiction,  118. 
creation  of  power  as  effecting  taxable  transfer,  106. 
exercise  of  power  as  effecting  taxable  transfer,  107-109. 
exercise  of,  what  constitutes,  112-115. 
jurisdiction  of  court,  118. 
nonresidents,  116-118. 

rate  of  taxation,  relationship  of  parties,  119. 
retrospective  operation  of  statute,  106-112. 
situs  of  property,  116-118. 
time  of  assessment  of  tax,  119. 
what  law  governs,  106-112. 

Power  to  Impose  Tax. 

based  on  general  power  to  lay  taxes,  16. 

based  on  right  to  regulate  transmission  of  property,  9-17. 

Probate  Court.    See  Jurisdiction  of  Court. 


INDEX.  825 

[References  are  to  Pa  gel.] 

Progressive  Rates. 

constitutionality  of,  26,  43-45. 
how  computed,  280-285. 

Promissory  Notes.    See  Notes. 

Property  Subject, 
to  tax,  68-103. 

Property  Tax. 

inheritance  tax  is  not,  4. 

Public  Policy. 

not  offended  by  tax,  8. 

Rates  of  Taxation. 

assignment  of  legacy,  in  case  of,  284. 
computation  of,  280-285. 
constitutional  limit  upon,  22. 
constitutionality  of  progressive,  26,  43. 
exemptions,  how  deducted,  280-285. 
law  governing,  in  case  of  change  in  statute,  284. 
power  of  appointment,  in  case  of,  119,  284. 
progressive,  constitutionality  of,  26,  43. 
progressive  rates,  how  computed,  280-283. 
relationship  of  parties  as  determining,  283. 
value  of  property  as  determining,  280-285. 

Real  Estate. 

equitable  conversion,  situs,  75-79. 

exemption  from  taxation,  74,  75. 

shares  in  joint  stock  association,  whether  realty,  94. 

situs  for  purposes  of  tax,  222-224. 

situs  in  case  of  equitable  conversion,  75-79. 

what  is,  for  purposes  of  taxation,  75. 

Reappraisement. 

of  property,  309,  326. 


826  INDEX. 

[References  ar«  to  Pages.J 

Receipts. 

for  payment  of  tax,  349. 

Recovering  Back. 

tax  by  taxpayer,  349. 

Refund. 

of  tax  in  case  of  excessive  or  erroneous  payments,  349. 

Relatives. 

discrimination  between,  25,  32. 

Release. 

of  tax  by  change  in  statute,  173,  174. 

Religious  Institutions. 

exemption  of  gifts  to,  200-204. 

Remainders,  Estates  of. 

accrual  of  tax,  125-145. 
amount  of  tax  on  contingent  estates,  147. 
assessment  and  payment  of  tax,  125-145. 
constitutional  right  to  tax  after  vested,  59,  60. 
contingent,  taxation  of,  126-145. 
law  governing  tax,  57. 

power  of  appointment,  time  for  assessment,  119. 
retrospective  operation  of  statute,  147,  148. 
time  for  assessment  and  payment,  125-145. 
time  for  payment  of  tax,  125-145. 
vested,  but  subject  to* defeasance,  127,  135. 
vested,  taxation  of,  125-128. 
what  law  governs,  55,  60,  147. 

whether  can  be  taxed  after  vesting,  constitutional  questions, 
59,  60. 

Renunciation  of  Legacy, 
effect  on  tax,  218,  219. 

Repeal. 

of  statutes,  65,  66. 


INDEX.  $27 

[Reference!  art  to  Pages.] 

Report. 

of  appraiser,  304,  308. 
form  of,  362. 

Retrospective  Statute. 

adopted  children,  181. 

exemption  statute,  173,  174. 

in  general,  52-62. 

statutes  affecting  powers  of  appointment,  62. 

statutes  affecting  remainders,  57-59,  147,  148. 

tax  imposed  pending  administration,  55. 

Safe  Deposit. 

delivery  of  property,  47. 

detention  of  property,  constitutional  law,  47,  48. 

situs  of  money  in  deposit,  235-238. 

Salvation  Army. 

exemption  of  gift  to,  201. 

Savings  Bank. 

deposits,  when  taxable,  92. 

Schools. 

exemption  of  gifts  to,  198-200. 

Services. 

transfer  in  consideration  of,  154. 

Situs  of  Property. 

adjudication  in  another  state,  full  faith  and  credit,  346. 

bonds  and  securities,  239-246. 

constitutionality  of  tax  on  nonresident's  personalty,  225-228. 

contract  for  sale  of  land,  239. 

debts  due  nonresident,  238. 

deposits  in  bank  or  trust  company,  235-238. 

domicile  of  decedent,  whether  controls,  224-231. 

equitable  conversion  as  affecting,  75-79. 

in  case  of  transfer  to  take  effect  at  death,  155. 


828  INDEX. 

[References  art  to  Page*.] 

Situs  of  Property  (Continued), 
in  general,  221,  222. 
marshaling  assets,  231-235. 
money  on  deposit,  235-238. 
mortgages  and  securities,  239-242. 
mortgage  on  real  estate,  242-244. 
notes  and  securities,  239-242. 
notes  secured  by  mortgage  on  land,  242-244. 
personalty,  in  general,  221,  222. 
personal  property  of  nonresident,  224-229. 
personal  property  in  foreign  states,  229-231. 
personal  property  taxable  set  domicile  of  owner,  224-228. 
personal  property  taxable  where  situated,  regardless  of  own- 
er's domicile,  229-231. 
power  of  appointment,  in  case  of,  116-118. 
real  estate,  222-224. 

real  estate  affected  by  equitable  conversion,  75-79. 
securities  and  notes,  239-242. 
stock  in  domestic  corporation,  246-253. 
stock  in  corporation  organized  in  two  states,  254-256. 
stock  in  foreign  corporation,  256,  257. 


Society  for  Prevention  of  Cruelty, 
exemption  of  gifts  to,  208,  209. 


South  Dakota  Statute. 

transfers  subject  to  tax,  rates  of  taxation,  market  value,  684. 

estates  for  years  or  for  life  and  remainders,  685. 

time  for  payment  of  tax,  686. 

collection  of  tax  by  executor,  686. 

sale  of  property  to  pay  tax,  686. 

payment  to  state  treasurer,  receipts  and  vouchers,  687. 

notice  to  county  treasurer  of  taxable  transfers,  687. 

refund  in  case  of  debts  proved  after  distribution,  687. 

transfer  of  stock  or  loans  by  foreign  executor,  687. 

refund  in  case  of  erroneous  payment,  688. 

appraisers  and  appraisement,  688. 

appraiser  taking  more  than  regular  fee,  penalty,  688. 


INDEX.  829 

[References  are  to  Pagea] 

South  Dakota  Statute  (Continued), 
jurisdiction  of  county  court,  689. 
citation  to  delinquent  taxpayer,  689. 
notice  to  state's  attorney  of  unpaid  tax,  689. 
statement  of  county  treasurer  of  unpaid  taxes,  689. 
books  and  records  to  be  kept  by  clerk  of  court,  689. 
receipts  for  taxes  paid,  690. 
lien  of  tax,  690. 

expenses  incurred  in  enforcing  tax,  690. 
payment  to  state  treasurer,  690. 

Spain. 

treaty  with,  tax  against  aliens,  263. 

Special  Administrator. 

deduction  of  fees  and  disbursements,  318. 

Stamp  Tax. 

on  letters  of  administration,  etc.,  2. 

State. 

exemption  from  tax,  185,  186. 
limitations  on  right  to  impose  tax,  21. 
that  have  adopted  tax,  18. 

Statute  of  Limitations. 

enforcement  of  tax  or  lien,  342-344. 

Statutes.  See  Constitutional  Law;  Interpretation  of  Statutes; 
Retrospective  Statutes.  See,  also,  name  of  each  state, 
Arkansas  Statute,  etc. 

Stock.     See  Corporate  Stock. 

Stock  Exchange. 

membership  in,  whether  taxable,  98,  99. 

Stranger. 

meaning  of  term,  180. 


830  INDEX. 

[Reference!  art  to  Pages.] 

Strict  Interpretation, 
of  statutes,  51. 
of  exemption  provisions,  171-173. 

Subpoena  Duces  Tecum. 

jurisdiction  to  issue,  291. 

Subrogation. 

in  case  of  payment  of  tax,  269. 

Succession. 

right  of  state  to  regulate,  10-12. 

subject  to  tax,  68-103. 

tax  is  on,  and  not  on  property,  4,  5. 

Support. 

transfer  in  consideration  of,  153,  154. 

Surrogate.    See  Jurisdiction  of  Courts. 

Sweden. 

treaty  with,  tax  against  aliens,  264-266. 

Tennessee  Statute. 

transfers  subject  to  tax,  rates,  exemptions,  691. 

bequest  to  executor  in  lieu  of  compensation,  692. 

estate  for  years  or  for  life  and  remainders,  time  of  payment, 

692. 

estate  for  years  or  for  life  and  remainders,  valuation,  693. 
lien  of  tax,  report  of  personal  property  and  security  for  tax, 

693. 

interest  and  discount,  693. 
collection  of  tax  by  executor,  693. 
legacy  for  limited  period  or  upon  contingency,  694. 
legacy  charged  upon  real  estate,  694. 
information  of  transfers  to  clerk  of  county  court,  694. 
payment  to  clerk  of  county  court,  receipts  and  vouchers,  694. 
transfer  of  stock  or  loans  by  foreign  executor,  695. 
refund  of  tax  in  case  of  debts  proved  after  distribution,  695. 
appraisers  and  appraisement,  695. 


INDEX.  831 

[References  ar»  to  Paces.] 

Tennessee  Statute  (Continued). 

appraiser  receiving  more  than  regular  fees,  penalty,  696. 
records  to  be  kept  by  clerk  of  court,  696. 
proceedings  to  enforce  tax,  696. 
sale  of  property  to  pay  tax,  696. 
time  for  bringing  suit  to  enforce  tax,  697. 
trial  and  appeal,  attorney  fees,  697. 
proceedings  where  clerk  discovers  unpaid  tax,  697. 
suit  by  clerk  to  enforce  tax,  698. 
jurisdiction  of  county  courts,  appeals,  698. 
fees  and  costs  in  county  and  circuit  courts,  698. 
suits  by  clerk,  fees,  attorneys,  parties,  costs,  698. 
bond  of  clerk  of  court,  699. 
payment  of  tax  to  state  treasurer,  699. 
lien  of  tax,  699. 

attorney  general  to  represent  government,  699. 
bond  of  executors,  699. 

duty  of  chancery  court  to  see  tax  paid,  receipts  and  vouchers, 
!          700. 

appraisers,  oath  and  compensation,  700. 
definition  of  county  court,  700. 

Texas  Statute. 

transfers  subject  to  tax,  rates  of  taxation,  701.' 

estates  for  years  or  for  life  and  remainder,  702. 

bequest  to  executor  in  lieu  of  compensation,  702. 

inventory  to  be  filed  by  executor,  702. 

proceedings  when  no  administration  applied  for,  703. 

appraisers  and  appraisement,  703. 

determination  of  amount  of  tax,  lien  and  interest,  703. 

collection  of  tax  by  executor,  sale  of  property,  704. 

legacy  charged  upon  real  estate,  704. 

payment  to  collector  of  taxes,  receipts,  704. 

action  to  recover  tax  from  executor,  704. 

payment  to  state  treasurer,  705. 

deposits  of  moneys  as  general  revenue  fund,  705. 

refund  in  case  of  debts  proved  after  distribution,  705. 

account  of  executor  not  allowed  until  taxes  paid,  705. 

proceedings  where  no  administration  necessary,  705. 


832  INDEX. 

[References  an  to  Pages.] 

Tomb. 

testamentary  provision  for,  whether  taxable,  89. 

Transferee. 

liability  for  tax,  273. 

Transfers. 

subject  to  tax,  68-103. 

Transmission  of  Property, 
tax  is  on,  4,  5. 

Treasurer. 

payment  to  or  by,  mandamus,  348. 

Treaties. 

effect  on  tax  against  aliens,  259-266. 

"most  favored  nation  clause,"  262,  263. 

with  Bavaria,  260,  261. 

with  France,  259,  260. 

with  Italy,  262,  263. 

with  Norway  and  Sweden,  264-266. 

with  Spain,  263,  264. 

with  Wiirttemberg,  261. 

Trustees. 

deduction  of  compensation,  323. 
gifts  to  in  lieu  of  compensation,  219. 

Trusts. 

income  payable  to  transferees,  167. 

power  to  revoke,  as  affecting  taxability,  166. 

transfers  in,  whether  taxable,  164-166. 

Uniformity  of  Taxation, 
rule  of,  25. 

United  States. 

basis  of  right  of,  to  impose  tax,  15. 
constitutionality  of  tax  imposed  by,  23. 


INDEX.  833 

[References  ar«  to  Page!.] 

United  States  (Continued). 

bonds  of,  situs  for  purposes  of  tax,  245. 
bonds  and  securities  of,  whether  taxable,  94-96. 
exemption  from  tax,  185,  186. 
legacy  to,  whether  taxable,  97. 

Utah  Statute. 

transfers  subject  to  tax,  rates,  lien  of  tax,  exemptions,  706. 

deduction  of  debts,  707. 

appointment  of  appraisers,  707. 

appraiser  receiving  illegal  fees,  penalty,  707. 

issuance  of  commissions  to  appraisers,  708. 

notice  and  filing  of  appraisement,  708. 

objections  to  appraisement  and  hearing  thereon,  708. 

action  in  pending  cases,  709. 

time  for  appraisement  and  assessment,  sale  of  property  to  pay 

tax,  709. 

estates  for  years  or  for  life  and  remainders,  709. 
bequests  to  executors  in  lieu  of  compensation,  710. 
legacies  charged  upon  real  estate,  710. 
collection  of  tax  by  executor,  710. 
payment  to  state  treasurer,  interest,  710. 
collection  of  tax  by  executor,  711. 
account  of  executor  not  settled  until  tax  paid,  711. 
jurisdiction  of  district  court,  711. 
information  to  be  furnished  by  executor  to  state  treasurer, 

711. 

inheritance  tax  and  lien  book  to  be  kept  by  clerk,  712. 
report  of  executor,  entry  of  real  estate  in  lien  book,  712. 
extension  of  time  for  appraisement,  713. 
entries  in  tax  and  lien  books,  index,  713. 
record  to  be  kept  by  clerk,  713. 

duty  of  clerk  to  make  examinations  and  investigations,  714. 
duties  of  court  and  district  attorney,  714. 
costs  of  proceedings,  715. 

transfer  or  delivery  of  deposits  or  assets,  notice,  715. 
foreign  estates,  assessment  of  tax,  715. 
foreign  estates,  assessment  and  payment  of  tax,  716. 


834  INDEX. 

[References  are  to  Pages.] 

Utah  Statute  (Continued). 

transfer  of  corporate  stock  by  foreign  executor,  716. 
compromise  by  state  treasurer,  716. 
application  of  statute  to  pending  estates,  716. 
repeal  of  prior  statutes,  717. 
time  when  statute  takes  effect,  717. 

Vacation. 

of  orders  and  decrees,  328-330. 

Valuation  of  Property.    See  Appraisers  and  Appraisement. 

Venue. 

appraisement  proceedings,  297. 
See  Jurisdiction  of  Courts. 

Vermont  Statute. 

definitions  of  terms,  719. 

transfers  subject  to  tax,  rates,  720. 

transfers  intended  to  take  effect  at  death,  720. 

effect  of  payment  of  tax  to  another  state,  720. 

rebate  in  case  of  payment  of  tax  to  another  state,  721. 

exemption  of  gifts  for  burial  lots,  721. 

collection  of  tax  by  executor,  721. 

sale  of  property  to  pay  tax,  721. 

property  not  delivered  until  tax  paid,  lien  of  tax,  721. 

failure  of  executor  to  collect  tax,  722. 

legacy  charged1  upon  real  or  personal  estate,  722. 

account  of  executor  not  allowed  until  tax  paid,  722. 

jurisdiction  of  probate  court,  722. 

appeals  to  county  court,  722. 

certifying  case  to  supreme  court,  723. 

hearing  in  supreme  court,  723. 

costs  of  proceedings,  723. 

determination  of  value  of  property  and  amount  of  taxes,  724. 

report  by  probate  court  to  commissioner  of  taxes,  723. 

value  of  legacy  or  distributive  share,  724. 

value  of  gift  to  take  effect  at  death,  724. 


INDEX.  835 

[References  are  to  Pages.] 

Vermont  Statute  (Continued). 

appointment  of  appraisers,  724. 
warrant  to  appraisers,  724. 
oath  of  appraisers,  notice  to  parties,  725. 
authority  of  appraisers  as  to  witnesses,  725. 
findings  and  reports  of  appraisers,  725. 
fees  of  appraisers,  725. 

agreement  by  commissioner  of  taxes  with  executor  as  to  valu- 
ation, 725. 

expiration  of  such  agreement  in  writing,  725. 
filing  of  agreement  with  various  officers,  725. 
affirmance  or  setting  aside  of  agreement,  726. 
effect  of  setting  aside  agreement,  726. 
determination  of  value  of  life  or  contingent  estate,  726. 
determination  of  value  of  annuities,  etc.,  726. 
valuation  of  yearly  income,  726. 
mortality  and  discount  tables,  726. 
estates  for  life  or  for  years  and  remainders,  727. 
bequest  to  executor  in  lieu  of  compensation,  727. 
receipts  to  be  issued  by  state  treasurer,  727. 
rebate  in  case  of  excessive  payment,  727. 
time  for  payment  of  tax,  728. 

payment  of  tax  on  delivery  of  distributive  share,  728. 
extension  of  time  in  certain  cases,  728. 
extension  of  time  where  value  not  determinable,  728. 
records  to  be  kept  of  extension  of  time,  728. 
time  for  payment  of  tax,  728. 
inventory  of  property,  728. 
failure  to  file  inventory,  729. 
interest  on  taxes,  729. 

reports  to  be  made  by  register  of  probate,  729. 
report  to  be  made  by  register  of  probate  to  commissioner  ol 

taxes,  729. 

application  by  tax  commissioner  for  administration,  729. 
notice  to  commissioner  of  taxes  of  taxable  transfers,  730. 
copies  of  papers  and  records,  730. 
refusal  of  officer  to  furnish  copies,  730. 
transfers  of  stock  or  obligations  by  foreign  executor,  730. 


836  INDEX. 

[Reference!  are  to  Pages.] 

Vermont  Statute  (Continued). 

penalty  for  recording  transfer  of  stock  without  payment  of 

tax,  731. 
transfer  or  receipts  of  securities  or  assets  by  foreign  executor 

or  legatee,  731. 

transfer  to  foreign  executor  not  made  until  taxes  paid,  732. 
failure  to  mail  or  deliver  notice,  732. 
payment  of  bank  deposit,  732. 
certificate  of  nonliability  by  tax  commissioner,  732. 
notice  by  bank  to  tax  commissioner,  733. 
bank  not  to  pay  deposit  without  consent  of  tax  commissioner, 

733. 

failure  of  bank  or  trust  company  to  obey  law,  penalty,  733. 
petition  by  tax  commissioner  to  determine  amount  of  tax  due, 

733. 

service  of  petition,  733. 
hearing  in  court  of  chancery,  734. 
appellate  proceedings,  734. 
proceedings  installed  by  tax  commissioner  in  probate  court, 

734. 

jurisdiction  of  court  in  such  proceedings,  734. 
issuance  of  letters  of  administration,  735. 
jurisdiction  of  court  after  issuance  of  letters,  735. 
production  of  books  of  accounts,  records,  etc.,  735. 
power  of  probate  court  to  issue  summons  or  citation,  735. 
compensation  of  witnesses,  735. 
penalty  for  refusal  to  appear  or  testify  before  probate  court, 

736. 

reports  of  listers,  736. 
false  returns  or  report,  perjury,  736. 
time  when  statute  takes  effect,  736. 
liabilities  already  accrued  under  previous  statutes,  736. 

Vested  Estates. 

right  of  state  to  tax,  55,  173,  174. 

Virginia  Statute. 

transfers  subject  to  tax,  rates,  exemptions,  737. 
collection  of  tax  by  personal  representative,  737. 


INDEX.  837 

[References  are  to  Pages.] 

Virginia  Statute  (Continued). 

collection  of  tax  on  real  estate,  lien  and  sale,  737. 

payment  to  county  treasurer,  737. 

determination  of  tax  by  court,  duties  of  clerk,  auditor  and 

treasurer,  738. 
penalty  for  failure  to  pay  tax,  738. 

Waiver. 

form  of,  380. 

of  legacy,  effect  on  tax,  218,  219. 
See  Renunciation. 

Washington  Statute. 

transfers  subject  to  tax,  deductions,  interest,  lien,  739. 

rates  of  taxation,  740. 

property  subject  to  tax,  740. 

property  belonging  to  foreign  estate,  740. 

appraisement  of  property  and  collection  of  tax,  741. 

estates  for  life  and  remainder  in  favor  of  lineal  descendant, 

741. 

estate  for  life  in  favor  of  collateral  relatives,  741. 
bequest  to  executor  in  lieu  of  commissions,  742. 
legacy  charged  upon  real  estate,  742. 
collection  of  tax  by  executor,  742. 
payment  to  state  treasurer,  receipts,  interest,  743. 
appraisers  and  appraisement,  743. 

transfer  of  stock  or  obligations  by  foreign  executor,  743. 
statement  of  character  of  property  and  names  of  heirs,  744. 
extension  of  time  for  filing  appraisement,  744. 
compromise  by  tax  commissioners,  744. 
powers  and  duties  of  tax  commissioners,  745. 
exemptions  of  charitable  institutions,  745. 

West  Virginia  Statute. 

transfers  subject  to  tax,  746. 
rates  of  taxation  in  certain  cases,  747. 
rates  of  taxation  in  other  cases,  747. 
exemptions  from  tax,  748. 


838  INDEX. 

[References  are  to  Pages.] 

West  Virginia  Statute  (Continued). 

determination  of  market  value  of  property,  748. 

bequests  to  executor  in  payment  of  debt  or  in  lieu  of  com- 
pensation, 748. 

estates  for  years  or  for  life,  remainder  and  contingent  in- 
terests, 748. 

situs  of  personal  property,  749. 

lien  of  tax,  749. 

suspension  of  payment  of  tax,  750. 

interest  on  tax,  750. 

payment  of  tax,  750. 

transfer  of  stocks  or  securities  by  foreign  executor,  750. 

duty  of  county  clerk  or  court  to  report  transfers,  750. 

statement  by  executor  of  transfers  subject  to  tax,  751. 

ascertainment  by  tax  commissioner  of  taxable  transfers,  cer- 
tificates, 751. 

failure  to  report  transfers  to  tax  commissioner,  proceedings, 
752. 

recording  certificates  of  tax  commissioner,  752. 

assessment  of  tax  by  commissioner,  752. 

payment  of  tax  into  treasury,  certificate  of  payment,  753. 

enforcement  of  tax,  752. 

appeals  from  assessment,  754. 

fees  of  clerk  of  county  court,  754. 

account  of  fiduciaries  not  allowed  without  certificate  of  tax 
commissioner,  754. 

compromise  by  tax  commissioner,  755. 

liability  of  fiduciaries  and  sureties,  755. 

penalty  for  failure  to  discharge  duties,  755. 

inspection  of  books  by  tax  commissioner,  755. 

What  Law  Governs.    See  subject  in  question. 

Widow. 

articles  exempt  to,  whether  taxable,  86. 

estate  of,  whether  exempt.    See  Community  Property ;  Dower. 


INDEX.  839 

[Reference!  »r«  to  Pager] 

wm. 

agreement  to  make,  taxation  of  transfer,  163. 

jurisdiction  of  court  to  construe,  288. 

power  of  state  to  regulate  testamentary  dispositions,  10-12. 

Will  Compromise. 

effect  on  inheritance  tax,  210-218. 

Will  Contest. 

deduction  of  expenses  of,  318-320. 

Wisconsin  Statute. 

transfers  subject  to  tax.  value  of  property,  756. 

primary  rates  of  taxation,  757. 

other  rates  of  taxation,  758. 

exemptions  from  tax,  758. 

lien  of  tax,  payment  to  treasurer,  receipts,  time  for  payment, 
759. 

interest  and  discount,  759. 

collection  of  tax  by  executor,  sale  of  property,  760. 

refund  of  tax  in  certain  cases,  760. 

bond  to  pay  tax  when  person  comes  into  possession  or  enjoy- 
ment, 761. 

bequest  to  executor  in  lieu  of  compensation,  761. 

transfer  or  delivery  of  stocks,  securities  and  deposits,  notice, 
761. 

jurisdiction  of  county  court,  estates  of  nonresidents,  fees  of 
county,  762. 

appraisers  and  appraisement,  contingent  and  expectant 
estates,  763. 

notice  of  appraisement,  witnesses,  report,  compensation,  764. 

report  of  special  appraiser,  proceedings  thereon,  computation 
of  tax,  reappraisement,  764. 

enforcement  of  unpaid  taxes,  766. 

duties  of  public  administrator,  767. 

report  of  county  treasurer,  768. 

retention  of  funds  by  treasurer  for  use  of  county,  768. 

compromise  of  taxes  in  certain  cases,  768. 


840  INDEX. 

[References  are  to  Pages.] 

Wisconsin  Statute  (Continued). 

receipts  for  payment  of  tax,  769. 

payment  to  state  treasurer,  769. 

definition  of  terms,  769. 

compromise  of  taxes  accruing  prior  to  this  act,  769. 

Witnesses. 

commission  to  take  testimony,  290,  291. 

Woman's  Christian  Temperance  Union, 
whether  gift  to  exempt,  192-199. 

Woman's  Foreign  Missionary  Society, 
exemption  of  gift  to,  196. 

Women's  Relief  Corps. 

exemption  of  gift  to,  201. 

Women's  Temperance  Union, 
exemption  of  gift  to,  200. 

Wiirttemberg. 

treaty  with,  tax  against  aliens,  261. 

Wyoming  Statute. 

transfers  subject  to  tax,  rates,  exemptions,  771. 

estates  for  years  or  for  life  and  remainders,  772. 

time  for  payment,  bond,  interest,  772. 

collection  of  tax  by  executor,  773. 

sale  of  property  to  pay  tax,  773. 

payment  to  county  treasurer,  receipts  and  vouchers,  773. 

statement  to  county  treasurer  of  taxable  transfers,  774. 

refund  of  tax  when  debts  proved  after  distribution,  774. 

transfer  of  stocks  by  foreign  executor,  774. 

refund  of  tax  paid  erroneously,  774. 

appraisers  and  appraisement,  774. 

appraiser  taking  more  than  regular  fees,  penalty,  775. 

jurisdiction  of  district  court,  775. 

proceedings  to  enforce  tax,  776. 


INDEX.  841 

[References  are  to  Pages.] 

Wyoming  Statute  (Continued). 

notice  to  county  attorney  of  unpaid  taxes,  776. 

statement  to  county  treasurer  of  delinquent  taxpayers,  776. 

record  of  estates  to  be  kept  by  county  clerk,  776. 

custody  and  use  of  taxes  collected,  776. 

payment  to  state  treasurer,  receipts  and  reports,  777. 

copies  of  receipts  to  be  furnished,  lien  of  tax,  777. 

Young  Men's  Christian  Association, 
exemption  of  gift  to,  199-201. 

Young  Women's  Christian  Association, 

exemption  of  gifts  to,  201. 


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